











>r$f Hi IffH *l\ * ! * H >i * 








w jf|}:::Jj::j:-;iij 















II i 




























j'-fl 





































































. 






'" 



*^i- 



Township Organization Laws 
of Illinois. 



^vctUaxiz^A fcg |at». 



A COMPILATION 

OP THE 

LAWS OF ILLINOIS, 



E ELATING TO 



TOWNSHIP ORGANIZATION 



MANAGEMENT OF COUNTY AFEAIBS, 



Numerous Forms, and Notes of Instruction, 

Supported by Adjudicated Cases, Opinions of the Attorney General, and Rulings of the 
Auditor of Public Accounts. 

UTEL'W ESZTZOIT, BBVISBD A.1713 E£TXj.A.:E&<3-E3D. 

Embracing the Laws down to, and including, 1881. 

WITH AN APPENDIX. 

J 

BY ELIJAH M. HAINES. 

COUNSELOR- AT-LAW, 

Compiler of Township Organization Laws of [Wisconsin, Michigan, Missouri, and Minnesota, 
and Author of the Probate Manual, and a Treatise for Justices of the Peace, Etc 



• 




CHICAGO: 
E. B. MYEKS & COMPANY, 

LAW BOOKSELLERS AND PUBLISHERS 

1881. 






Entered according to Act of Congress, in the year 1855, 

By ELIJAH M. HAINES, 

In the Clerk's Office of the District Court for the Northern District of niinois. 



Entered according to act of Congress, in the year 1879, 
By ELIJAH M. HAINES, 
In the Office of the Librarian of Congress, at Washington, D. C. 



CHICAGO, ILLINOIS: CHICAGO, ILLINOIS. 

S. I. Bradbury & Sons, Stereotyped by 

Legal Adviser Book and Job Printing Department, CHICAGO stereotype WORKS, 
78, 80 & 82 Fifth Ave. 85 & 87 Fifth Avenne. 



LEGISLATIVE ENDORSEMENT. 

AN ACT in i elation to the Compilation and Distribution of the General Laws of the State of Illinois, 
relative to Township Organization. 

Section 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, 
That upon delivery to the Secretary of State, of a number of copies sufficient to supply eacn 
township in the State in the counties adopting township organization, with ten copies for each 
township, of a work entitled a Compilation of all the General Laws of the State of Illinois, 
relative to Township Organization, to which are added numerous practical forms and notes, 
with references to decisions of the older States on questions upon like statutes, with a copious 
Index, by Elijah M. Haines, counselor-at-law, the said Secretary of State shall give to the said 
Elijah M. Haines, the compiler of said work, or to his order, a certificate of the delivery thereof, 
stating therein the number of copies so delivered, the number required, as contemplated by 
this act, to be ascertained from the records of the office of the Auditor of public accounts. 

Sec. 2. [Provides for payment by warrant on the State Treasury.] 

Sec. 3. The Secretary of State shall distribute the said books among the several counties 
adopting township organization, allowing to each county a sufficient number to afford ten copies 
to each township therein, which shall be transmitted by the Secretary of State to the several 
county clerks of said counties, to be distributed among the several town officers as the Board of 
Supervisors shall order. 

Sec. 4. This act to take effect and be in force from and after its passage. 

THOS. J. TURNER, 

Speaker of the Souse of Representatives. 

G. KOERNER, 

Speaker of the Senate, 
Approved February 9, 1855. 

J, A. MATTESON. 



PREFACE. 



The first edition of this compilation was published in 1855. Before 
publication the plan of the work was submitted to the General Assembly 
of the State for their approval and patronage. It was favorably consid- 
ered, and a number of books ordered at the expense of the State sufficient 
to supply each township in the State with ten copies, making in the 
aggregate about eight thousand copies. This is regarded as a legislative 
endorsement of the book, making it the official guide for all public offi- 
cers. The work has been received with such favor by public officers and 
citizens generally that the entire sale at the present time exceeds fifty 
thousand copies. 

The peculiar features of this work are : 1. It presents all the statute 
law on thesubject of Township Organization, orthat havingany connection 
therewith — collected together in one volume — in methodical and con_ 
venient form for reference. 2. It gives a full and complete collection of 
forms for proceeding under the law. 3. It gives, by way of notes full in- 
structions in regard to every branch of the law, clearly expressed and 
supported by reference to judicial decisions. 4. It presents the law, the 
forms, and the notes, where they relate to a given subject, on the same 
page, and in immediate connection. It is this arrangement — which the 
compiler himself originated — that contributes in giving the work its 
great value as a useful and indispensable book for all public officers under 
the township organization system ; and the important matter it contains 
renders it valuable, not only for public officers and the legal profession, 
but for every citizen and tax-payer in the State. 

The many changes in the law required a thorough revision of the work 
in 1861, and a further revision in 1870, to conform to the changes under 
the new Constitution. The work was again partially revised in 1873, in 
accordance with the laws passed under the Constitution of 1870. The 
completion of the revision of the statutes by the legislature at its adjourned 
session in 1874, rendered necessary a further revision of this work to con- 



10 PREFACE. 



form to the new code of statutes. At each subsequent session the legislature 
continued making changes in the laws relating to township organization, 
until at this time they have become so important as to demand another re- 
vision of this work, which is here presented, embodying all laws and decis- 
ions properly belonging to such a compilation, down to the present time. 
It will be observed that the Township Organization Act, as revised by the 
legislature in 1874, made many radical changes in the law concerning 
township affairs. It will be further observed that many of its provisions 
are vague and uncertain, not only stripping the system of some excellent 
features, as formerly existing, but leaving us in doubt as to the intention 
of the law in many important respects. In Article I, concerning adopt- 
ing township organization, the town meeting is entirely ignored:' ref- 
erence only being made to the election of town officers, or, as termed by 
the act, the "town election." The town meeting, as provided in a sub- 
sequent portion of the act, is a mere skeleton of that existing under the 
former township organization act. It was supposed that the legislature 
would take occasion to correct these imperfections in the law at an 
early day, but several sessions have passed and no progress has been 
made in that direction. 

It has been the endeavor of the compiler to explain in the notes to the 
text, every apparent ambiguity in the law, and give as full instruc- 
tions on doubtful points as the light of Judicial determinations would 
warrant. 

Notes of decisions of the Supreme Court of Illinois, relating to the 
laws which the compilation embraces, are given in this edition down to 
Volume 87 of the Reports; notes of the decisions of other States, which 
were found applicable, are also given. There is also added notes of 
opinions given by the State Auditor of Public Accounts in regard to the 
revenue laws of the State. Reference is also made in several instances to 
the opinions of Attorney General Edsall, of Illinois and the Attorney 
General of Minnesota. No opinions being found in the Attorney Gen- 
eral's office, of this State, relating to the laws herein embraced, prior to- 
the the term of the present Attorney General. 

A new feature of this compilation is the addition, in an Appendix, of a 
brief summary of the rules of parliamentary law, for the benefit of town 
meetings and boards of supervisors. Efficiency can never be expected in 
any deliberative body where parliamentary rules are disregarded. In 
other words, where such rules are not properly observed. Hence 
a study and proper understanding of these rules is necessary on the part 
of every member of the board of supervisors and every elector who ex- 
pects to attend and take part in the town meeting. This feature there- 
fore renders the book of increased value. 



PEEFACE. 11 



The extent of the increase of matter from late legislation and decisions, 
is shown in the fact that over one hundred pages are necessarily added to 
the present edition of this work, thereby increasing the size of the book 
nearly one-fourth from that of the former edition. 

The growth of our Township Organization system, which is now fully 
adjusted to our general statutes, has, at this time, reached that point that 
the laws bearing on that subject comprise a large portion of the statutes, 
embodying, among other subjects, in addition to the Township Organiza- 
tion Act, Roads and Bridges, Drains and Ditches, Fences, Township In- 
surance, Paupers, Revenue, Elections, and Regulation of Animals Run- 
ning at Large, all tending still more to increase the necessity for a 
compilation of this kind in a separate volume, the utility of which is 
enhanced by the addition of notes and forms, rendering it a complete and 
convenient hand-book of the law on the subject embraced. 

The plan and scope of this compilation will be best understood by ref- 
erence to the table of contents following. 

ELIJAH M. HAINES. 
Chicago, III., Sept. 1, 1879, 



PREFACE TO THE FIRST EDITION. 



Previous to going to press with this work the compiler addressed circu- 
lars to supervisors and town clerks in the several towns in the State, asking 
their co-operation in its circulation, and for certain information within 
their reach in regard to their respective towns. The answers, in conse- 
quence of delay in the mails, in many instances were not received until 
after going to press. The compiler would, however, avail himself of this 
opportunity of acknowledging his gratitude to all such as have responded 
to his requirements, as well as for the kind feeling expressed upon their 
part, and encouragement extended in behalf of the work. It is acknowl- 
edged by all that a work of this kind has long been desired, not only to 
secure uniformity of action but to guide the inexperienced under the 
peculiarities of the Township system ; and the compiler claims no higher 
reward for his labors than that of having them duly appreciated by a 
practical portion of the public to whom the work is now commended. 

ELIJAH M. HAINES. 
Waukegan, III., May, 1855. 



TABLE OF CONTENTS. 

Township Organization,— Its Origin and Progress in the 

Western States 19-32 

DIVISION I. 
I. Township Organization Act 33-112 

Article I. How township organization adopted 33-39 

Article II. How discontinued 40-41 

Article HI. Of the alteration of boundaries, and division of towns 

and town property 41-49 

Article IV. Corporate powers of towns, and the exercise thereof,— 
what may be done at town mettings— by laws, rules 

and regulations 49-63 

Article V. Legal proceedings in favor of and against a town 64-66 

Article VI. Town meetings— judges of election 66-71 

Article VII. Town officers elected by ballot— mode of conducting elec- 
tion for town officers 71-79 

Article VIII. The mode of conducting town meetings for the transac- 
tion of miscellaneous business 79-84 

Article IX. Qualification and tenure of office 84-88 

Article X. Vacancies in town office and manner of filling them, 88-91 

Article XL The supervisor and his duties 92-97 

Article XII. The town clerk and his duties 97-98 

ArticleXIIL The board of town auditors 99-102 

Article XIV. Board of Health 103-104 

Article XV. The compensation of town officers 104-106 

Cities organized as towns in certain cases 106-107 

Estrays 107-108 

Canada Thistles 109-112 

DIVISION II. 
Roads and Bridges. 113-204 

Law of the road — 114-118 

Duties of commissioners of highways 118-128 

Highway labor and tax — . 128-144 

Regulations and penalties.. 144-152 

Altering, widening, vacating and establishing roads 153-159 

Damages and assessment 160-175 

Roads for private and public use 175-178 

Town and county line roads 178-179 

Road appeals 180-189 

Bridges 189-192 

Miscellaneous provisions 193-202 

Plats of highways to be recorded 203 

Effect of vacating property 203-204 



16 TABLE OF CONTENTS. 



DIVISION IIT. 
Drains and Ditches 205-238 

Organizing drainage districts— constructing drains. 205-227 

In counties not under township organization 228-229 

Districts composed of lands lying in two counties or in two townships 

in counties under township organization 229-230 

Special drainage districts 230-235 

By owner or joint owners as tenants in common, to procure outfalls.. .. 235-238 



DIVISION IV. 

Fences 239-252 

Fencing Baidroads 253-260 

DIVISION V. 
Paupers 261-271 

Residence for purpose of voting 272 

Separate support— poor house 272 

Tuition of pauper children 273 

DIVISION VI. 
Township Insurance Companies 275-28q 

DIVISION VII. 
Revenue :... 281-285 

Property liable for taxation 281-983 

Property exempt from taxation 283-285 

Rules tor valuing personal property 285-287 

Rules for valuing real estate 287 

Personal property, when listed 287 

Who shall list and what listed 288-289 

When listed and assessed, and what held to be personal property— man- 
ner of listing 289-293 

Form of schedule 293-295 

Rules for listing credits 295-296 

Rules for listing and valuing the property and business of banks, bank- 
ers, brokers and stock jobbers 296-299 

State and national banks 299-301 

Manner of listing and valuing the property of railroads 301-305 

Telegraph companies — return 305 

Penalty 306 

Real property, at what time listed— who liable for tax 306-307 

Subdividing 307 

How listed as between counties . 308 



TABLE OF CONTENTS. 17 



Revenue. Continued. 

How listed as between towns 309 

Making and delivery of assessment books and blanks 309-311 

Appointment of assessors and deputy assessors 311-312 

Oaths and duties of assessors— assessment of real and personal property. 312-315 

Review of assessment yb town board. 315 

Return of assessor to county clerk 316-318 

Pay of assessors and deputy assessors 318 

Duties of clerk on return of assessment books 319 

Equalization of assessments by county board 319-321 

Report of assessment by clerk to auditor, for equalization 321-322 

State board of equalization * 322-327 

Rates of taxation 327 

For state purposes 328 

For county purposes. 329 

Towns, cities, etc 329 

Collector's books extending rates 330-332 

Qualification of town and district collectors 332-333 

Delivery of collector's books— warrants 33:3-335 

Collection district and who collectors in counties not under township 

organization 335 

Vacancies and resignations 335 

Collectors... 336 

Manner in which taxes are to be collected 339-344 

Sworn statements of collections to be made— payments 344-345 

Return of town and district collectors to county collector . 345-347 

Return of delinquent special assessment 347-348 

County collector's receipts— powers 348-349 

Advertisement for judgment and sale 349-354 

Judgment 354-357 

Sale of delinquent lands 357-361 

Certified copy of sale lists to be sent to auditor 361 

Redemption. 361-364 

Tax deeds 364-368 

Forfeited property 368-370 

Final settlement of county collector 370-372 

Partial settlement of county collector 372-373 

Final settlement of the county collector for state taxes 373-375 

Lien of taxes 375-376 

Who not eligible as bondsman 377 

Liability on bonds 377 

Suits against collectors 377-378 

Sale of real estate on execution in behalf of state— redemption 379 

Double payment and assessment — refunding 380 

When records are destroyed 381 

Other duties of auditor 381-383 

Omitted properly— saving clauses 383-385 

Who may administer oaths 385 

Penalties of officers 385-386 

County to furnish books and blanks 386 

County funds— manner of keeping account thereof. 387-388 

Definitions 388-389 

Ropealing clause 389 

Bridges on border of state— how assessed , 390 

Illinois Central Railroad 390-392 

Agricultural and other statisticts .' 392-393 

Dogs 393-398 

2 



18 TABLE OF CONTENTS. 



DIVISION VIII. 

Bisections 399-438 

Electors of president and vice president of the United States 399-400 

Time of holding elections for certain officers 400-404 

Election precincts 404 

Judges and clerks of election 404-405 

Oath of judges and clerks of election 405 

Ballot boxes and poll books 406 

Constables appointed to attend— order 406 

Notice of election..*. 407-408 

Conducting elections— returns 408-413 

Qualification of voters 413-415 

Canvassing votes— certificate of election 416-419 

Offenses and penalties 419-424 

Contesting elections 424-429 

Resignations and vacancies 430-433 

Registration of electors 433-438 

DIVISION IX. 
Counties 436-468 

Boundaries and jurisdiction 439 

Alteration of county lines. 439-441 

New counties 441-445 

Of the powers and duties of counties and county boards 445-457 

Provisions specially applicable to the board of county commissioners in 

counties not under township organization 457-458 

Provisions specially applicable to the board of supervisors in counties 

under township organization 458-461 

Special provisions applicable to the board of county commissioners of 

Cook county 461-463 

Fees and salaries— classification of counties 463-164 

Bounty on wolf scalps 464-465 

County clerks 465-468 

DIVISION X. 
Animals 469-473 

Animals running at large • 469-472 

Male animals ; 472-473 

Appendix 475-482 

Index ^„ 483-514 



TOWNSHIP ORGANIZATION; -ITS ORIGIN AND 
PROGRESS IN THE WESTERN STATES. (1) 



Township Okganization, so-called, is a system in government hav- 
ing its origin in the New England States ; and, as the people of those 
states have migrated westward, it has been carried into most of the 
northern and western states. It is simply a system whereby the territory 
of each county is divided into convenient districts, called towns, or town- 
ships, which become a species of bodies corporate, or, as they are more 
commonly styled, quasi corporations. The object and result of this system 
is to bring the local affairs of the county under the immediate control and 
direction of the people. In this respect it not only becomes the life and 
•soul of a free government, but it becomes an institution for the practical 
education of the people in the principles of that system of government — 
the peculiar features of the system being that every voter of the town- 
ship is required to assume a direct responsibility in the administration of 
local public affairs. 

No scheme, having much similarity to our present system of township 
organization, is found in ancient history. The municipal divisions of 
Athens and other ancient republics were rather into castes or social ranks, 
ffhan territorial; although the " denies 1 ' of ancient Athens, the Roman 
and Grecian colonies, and at a later day the free cities of mediaeval Europe, 
possessed more or less of the privileges of self-government, such as elec- 
tion of officers, management of funds, and the like. These cases,, how- 
ever, are exceptions; isolated instances of the universal instinct for self- 
government which is born with all men, but repressed under non-elective 
.and irresponsible governments. 

In England, about A. D. 871, King Alfred, to prevent the rapines and 
disorders which prevailed in the realm, instituted a system of territorial 
division, which probably contains the first germ of our American idea of 
a township. This was a division of the kingdom into "tithings," an 
Anglo-Saxon term equivalent to " tenthings, ' ' or groups of ten. Each 
tithing was the area inhabited by ten contiguous families, who were 
"frankpledges," i. e.,free pledges or sureties to the king for each other's 
good behavior, and were bound to have any offender vdthrn their district 
forthcoming. One of the principal inhabitants of the tithing was 
annually appointed to preside over it, entitled tithingman or head- 

(1) The matter under this head is in substance that contained in a paper prepared 
-by E. M. Haines, and read by invitation before the American Social Science Asso- 
ciation, at Saratoga, N. Y., Sept. 8, 1876, and published in the Penn Monthly, of Phil- 
adelphia, May, 1877. 



20 TOWNSHIP ORGANIZATION SYSTEM; 

borough, being- supposed the most discreet man within it. As ten fami- 
lies constituted a tithing, so ten tithings formed a hundred, governed by 
a high constable or bailiff; and an indefinite number of hundreds com- 
posed a shire or county. 

Tithings, towns or vills were, by the laws and customs of England, of 
the same signification; but the word town or vill has, it seems, by the 
alteration of time and language, now become, in that country, a generical 
term, comprehending, under it the several species of cities, boroughs and 
common towns. A city originally signified a town incorporated, which 
was, or had been, the see or seat of a bishop. A borough was understood 
to be a town, either corporate or not, that sent burgesses to parliament. (1) 

The word town, strictly speaking, applies to a collection of houses hav- 
ing a population to that extent that the inhabitants are presumed to act 
as a body corporate for municipal regulations. But the word township 
applies to a territorial division of country, without reference to a compact 
condition of dwellings. The word ship, as here used, probably comes 
from the Dutch schip or Anglo-Saxon scyppen, to mould, form, shape, 
which, when added to the word town, in this connection, signifies the 
shape or outward boundaries which have been given to the town. 

Township organization, as a term, applied to a system for the regulation 
and management of municipal or fiiscal affairs, was first employed in 
that sense by the Constitution of Illinois, as amended in 1848, wherein 
was contemplated a division of the counties of the State into smaller dis- 
tricts, forming bodies corporate, for the regulation and management of 
local affairs,, denominated Township Organization. 

The State of Illinois being originally comprised within the territory of 
country belonging to the State of Virginia, received an early impress of 
the general features of the municipal system of that State, Irom which it 
provided for departing, as a settled policy, in the revision of the Consti- 
tution in 1848. And so, too, the influence of the parent State of Vir- 
ginia in this regard was in like manner originally extended in a greater 
or less degree over all those States carved out of the territory northwest 
of the Ohio river. 

A learned writer on the subject of the origin of laws and government 
remarks, that we are not to consider the first laws of society as the fruit 
of any deliberation confirmed by solemn and premeditated acts. They 
were naturally established by a tacit consent, a kind of engagement to 
which men are naturally very much inclined. Even political authority 

(1) In common speech, town, city and village are of the same import. A village is 
any small assemblage of houses occupied by artizans, laboring people and farmers. 
It is a denned locality, with a name. Herbert et al. v. Lavalle, 27 111. R., 448. Any 
small assemblage of houses for dwellings or business, or both, in the country, 
constitutes a village, whether they are situated upon regularly laid out streets and 
alleys or not. A place at a railroad station where there was a mill, a blacksmith's 
shop, a store and a grocery, with dwelling houses to accommodate those carrying 
on said business, was held to be a village in the common acceptation of the term. 
111. Cen. E. E. Co. v. Williams, 27 111. R., 48. In Illinois a village, to become incor- 
porated, must have at least three hundred inhabitants. Rev. Stat., p. 242, § 5. 

A place to become incorporated as a city is required to have at least one thousand 
inhabitants. Rev. Stat., p. 212, \ 5. Therefore, a city in Illinois is a place haying a 
large assemblage of houses, with a population exceeding one thousaad inhabitants. 



ITS ORIGIN AND PROGRESS. 21 

was established in this manner by a tacit agreement between those who 
submitted to it and those who received it. This idea applies with much 
force to that American system of government now so perfect and harmo- 
nious in its operation. 

De Tocqueville, in his work entitled American Institutions, in speaking 
of our political system, very properly remarks that two branches may be 
distinguished in the Anglo-American family which have grown up with- 
out entirely commingling — the one in the South, the other in the North. 
He discovers the causes which led to this condition of things, which are 
apparent to the most casual observer. They arise, not from design, but 
from the force of circumstances at the beginning. The planting of the 
original colony of Virginia at Jamestown had, for its design, the single 
and naked object of pecuniary profit to the proprietors. Its mission in- 
volved no principle for the benefit of mankind. It recognized the crown 
of Great Britain, from whence it derived the charter of its existence, as 
the source of political power. There was no recognition of the principle 
of self-government, or right of those not commissioned by the Crown for 
that purpose, to have any part in administering the government. 

Indeed, it was not intended that the administration of public affairs 
-should be committed to those who were to form the population of the 
colony. The colonists in general came with no such intention on their 
part. They were not of that class to concern themselves in the affairs of 
government. They are mentioned by the historian as largely comprised 
of adventurers, discharged servants, fraudulent bankrupts, and vagabond 
gentlemen. 

At that day the church was merged in the State. The latter was in 
reality subordinate to the influence of the former. The early charters of 
Virginia required the establishment of the church of England, and 
authorized the infliction of punishment for drawing off the people from 
their religion, as a matter of equal importance with their allegiance 
These circumstances conspired to assimilate the form of government to a 
system in which the masses had no control. The large landed estates, and 
consequently sparse settlements of the country, obviated the necessity of 
attention to public roads, or local improvements of a character demanded 
in a community of mutual interests or more dense population. The func- 
tions of government were, therefore, reduced in like proportion, being 
confined mostly to those of a judicial character for the adjustment of con- 
troversies and enforcement of penal laws. This gave rise to a division of 
the colony into counties or districts, for the purpose of defining the juris- 
diction of courts of justice, and the convenience of collecting revenue for 
support of the government. 

But the circumstances attending* the first settlement of the Colonies of 
New England, so called, were of an entirely different character. The early 
■colonists in this instance were non-conformists or dissenters from the Church 
of England. They came as exiles, fleeing from the wrath of ecclesiasti- 
cal tyranny, whose displeasure they had incurred; cast out as public offend- 
ers, — " as profane out of the mountain of God." Whilst the colonists o* 



22 TOWNSHIP ORGANIZATION SYSTEM; 

Virginia came with the law, those of New England came against the 
law; or perhaps, more properly speaking, without law. Thereupon arose- 
on the part of the latter, a positive necessity for the establishment of law 
for their mutual protection. But this necessity was not realized until the 
occurrence of threatened dissentions among themselves before quitting 
the ship in which they had embarked. The result was a written com- 
pact, subscribed by the male adults of the Infant Colony, declaring that 
those whose names are underwritten, having undertaken for the glory of 
God and the advancement of the Christian faith, to plant a colony in 
America, "do by these presents solemnly and mutually, in the presence 
of God and one another, covenant and combine ourselves together into a 
civil body politic, for our better ordering and preservation, and furtherance 
of the ends aforesaid; and by virtue hereof, to enact, constitute and frame 
such just and equal laws, ordinances, acts, constitutions and officers, from 
time to time, as shall be thought most mete and convenient for the gen- 
eral good of the colony, unto which we promise all due submission and 
obedience." 

This, it is said, is the first written Constitution extant, based upon the 
general good. It was the first time since the " morning stars sang to- 
gether," that the people themselves had met in council and framed a gov- 
ernment based upon equal rights. Compacts had been made in the past, 
partial enfranchisements had been conceded, and the power of Kings had 
in some degree been limited; but England, notwithstanding her Magna 
Charta, was still in chains — neither civil nor religious liberty was under- 
stood or practiced in her dominions. The Pilgrim on board the May- 
flower did more for human freedom by this single act, than whole cen- 
turies had done before. 

Another important principle attending this compact, is that, while, 
it is signed and entered into by the adult, males only, each affixed oppo- 
site his name the number of persons comprised in his family, as a recog- 
nition of their interests in the premises, and the responsibility of the 
subscriber to them, as the head of the family. In other words it is a 
recognition of the principle that the family is the unit of government; 
that the head of the family, in his exercise of political authority, is their 
representative, and is responsible to them for his action. 

When we contemplate the causes which led to the formation of that 
system of civil government established by the Pilgrim fathers in the New 
England colonies, we enter upon a field of increasing interest. It was 
simply the outgrowth of their theory of the Christian church, which con- 
templated the formation of a "pure congregation of true believers, in 
which the right of ecclesiastical self-government should be exercised im- 
mediately by the congregation, not mediately through representa- 
tives," as derived from the law of Christ, according to St. Matthew, 
which requires it to be "told to the church," when a brother will not 
hear admonition, the church being nothing but the assembly of believ- 
ers, and according to the word of St. Paul, that the believers must be 



ITS ORIGIN AND PROGRESS. 23 

gathered together for the public censure and excommunication of a scan- 
dalous person. 

In- forming a settlement, the first important care of the Pilgrims was 
the erection of a meeting house or place of assembly of the congregation 
for religious worship, around which clustered their habitations; as others 
arrived, or the congregation increased, it became necessary to move off 
and form a settlement at a convenient distance; but for protection 
against the Indians, a number of families, in like manner, settled near 
to each other, in the midst of which was the meeting house of the con- 
gregation. This clustering system prevailed until after the extirpation 
of the Indian tribes and the establishment of passable roads. The com- 
munities thus formed were called towns, or, as they assumed territorial 
extent with defined boundaries, they were more properly denominated 
toivnships, in which the local affairs of the the community were managed 
by direction of the freemen assembled in their town meetings, held at 
stated periods, or as occasion demanded. Thus New England grew up 
a congeries of towns. Out of this self-government in the church grew 
self-government in the State, democracy and the representative system. 

In New England, towns existed before counties, and counties were 
formed before States. Originally, the towns or townships exercised all 
the powers of government now possessed by a State. The powers sub- 
sequently assumed by the State governments were from surrender or dele- 
gation on the part of the towns. Counties were created to define the 
jurisdiction of courts of justice. The formation of States was by a union 
of towns, wherein arose the representative system, — each town being rep- 
resented in the State Legislature or general court, by delegates chosen by 
the freemen of the town at their stated town meetings. From thence, as 
De Tocqueville expresses it, " the principles of New England spread at 
first to the neighboring States; they then passed successively to the more 
distant ones, and at length they embraced the whole confederation. 
They now extend their influence beyond its limits over the whole American 
world. The civilization of New England has been like a beacon light 
upon a hill, which, after it has diffused its warmth around, tinges the dis- 
tant horizon with its glow." He adds, that in New England is fo and the 
germ and gradual development of that township independence which is 
the life and mainspring of American liberty ;. the confederation of the 
States of the National Union being but a further application of the prin- 
ciple whereby were formed the original New England colonies by a union 
of towns. It is to be remarked, however, that notwithstanding this 
manifest influence, and whilst many States have borrowed theories from 
the institutions of New England, yet none have accepted a township sys- 
tem so purely democratic. 

New York, bordering upon the New England States and receiving a 
large proportion of its population therefrom, especially from Connecticut, 
by tacit consent, adopted the township system at an early day. Here, 
however, the system did not grow upon the people as in New England, 
but became adopted in imitation of it; from the circumstances attending, 



24 TOWNSHIP ORGANIZATION SffeTJSM, 



it was wanting' in those purely democratic elements which characterize 
the New England system. In New York, unlike New England, the State 
government was formed before the township. The formation of the 
township system was through the medium of State authority, recognizing 
the State government as sovereign and supreme, while in New England, in 
the absence of a State body politic in the formation of towns, the freemen 
or the people themselves were the recognized source of power. In New 
York the State became divided into counties, and the counties were sub- 
divided into towns. The town in principle was a mere representative dis- 
trict, and an agency in the State government. In New England a town 
was a commonwealth, the legislative power whereof was vested in the 
freemen when duly assembled. The laws in general were executed by a 
board of officers called select-men of the town. Their principle of repre- 
sentation in forming a State government was one of right, reserved to 
themselves, and not an institution of convenience granted by the State as 
the superior body politic. In New York this system of town representa- 
tion was imitated by providing a county board for the management of the 
fiscal affairs of the county, forming a sort of legislative body concerning 
local affairs, intermediate between the towns and the General Assembly of 
the State — each town being entitled therein to one representative. The 
large extent of the territory of the State rendered the New England sys- 
tem of town representation in the General Assembly impracticable. 

The State of Ohio was entitled to more positive results from the influ- 
ence of New England institutions than it in reality received, from the fact 
that Connecticut for a time claimed dominion within the territory of which 
it was formed, and that its early settlers hailed from the New England 
States. The first settlement of this State at Marietta, by New England 
people, was marked by the same pilgrim spirit which planted the original 
colony at Plymouth. A noticeable characteristic of the early New Eng- 
land colonist is that of at once providing rules for civil government. 
History presents no other such striking instance of this peculiar character. 

In planting the original colony of Virginia, the idea of the necessity of 
laws or rules for the general good seems not to have entered into the minds 
of the colonists. In this regard they committed their interests entirely to 
the church and the crown, relying not upon themselves, but on the author- 
ity which they acknowledged as superior and as possessing the right to 
direct and control their conduct. 

The first settlement of Ohio at the mouth of the Muskingum river, 
afterwards called Marietta, was by a New England Association, under the 
management of Col. Rufus Putnam, in advance of the territorial govern- 
ment established by Governor St. Clair, and whereby it became necessary, 
as is stated, to erect a temporary government in the meantime for internal 
security. For this purpose a set of laws was passed, and published by 
being nailed to a tree in the village, and Return Jonathan Meigs was 
appointed to administer them. 

Among the first acts of the Governor in organizing the territorial gov- 
ernment, was the establishment of one county, comprising all the terri- 



ITS ORIGIN AND PROGRESS. 25 

tory that had been ceded by the Indians, and embracing" abont half that 
within the present limits of the State. It was called Washington county, 
and was the first political subdivision established in the Territory. Sub- 
sequent legislation in adopting a system of political subdivisions, reveals 
a contest between the county and township organization system. The 
Virginia military reservation drew a considerable number of Revolution- 
ary veterans and others from that State, who naturally contended with 
their New England fellow citizens for that system which was more in har- 
mony with their early notions of government, which exempted the masses 
from the cares and responsibilities of public affairs. For convenience of 
description, the plan was adopted of subdividing the public lands into 
townships of convenient size, of six miles square. This was favorable to 
the idea of organized political townships. But the influence of the Vir- 
ginia system of county organization, was felt to that extent that a plan fol- 
lowed which has been called the compromise system, wherein the functions 
of the government in local affairs, are divided between the counties and 
towsnhips, as bodies politic. 

It was long after the organization of the State government, however, 
that this compromise system was matured in its present form. Notwith- 
standing the ordinance of 1787, for the government of the territory 
northwest of the Ohio River, had recognized and invited township 
organization by providing for township representation, and for the ap- 
pointment of magistrates and other civil officers in townships, the system 
as now existing, became established in Ohio with reluctance, and not until 
the New England spirit of local self-government had so far permeated 
public sentiment as to overcome resistance from Virginia prejudices. 

In organizing civil government in Virginia, the first care of the consti- 
tuted authorities seems to have been the establishment of courts of justice. 
In 1623, courts were directed to be held in the corporations of Charles City 
and Elizabeth City. In 1631, commissioners were appointed to hold 
monthly courts in some of the more remote plantations — styled Commis- 
sioners of the County Courts. In time, as the county system assumed 
form, the fiscal affairs of the county were committed to these Commission- 
ers, or those of like functions. And this seems to have been the origin of 
that executive board called county commissioners, adopted in Ohio, and 
prevailing at first in all the northwestern and newer States — having the 
management of the fiscal and local affairs of the county. 

In the Plymouth Colony, the first act in civil government was the organ- 
ization of the militia for defense against the Indians. So in Ohio, the 
first act of the governor and council was a law " for regulating and estab- 
lishing the militia." Laws of a general nature followed soon thereafter. 
The government of the United States having adopted the policy of dona- 
ting a section, or one mile square, of land in each township, for the bene- 
fit of public schools therein, organization became necessaiy in time, for 
the management of the fund arising therefrom for the purposes intended. 
This was an additional influence in maturing 1 a township organization 
system, and as the wealth and population of the State has increased, and 



26 TOWNSHIP ORGANIZATION SYSTEM; 

local interests have multiplied, the crude system, as originally commenced,, 
has ripened into one in imitation of that in New England, but with more- 
limited powers. Larger powers are reserved to the legislature than in 
the New England states, the management of local affairs, as before re- 
marked, being divided between the counties and townships therein. 

By the laws of Ohio, the general powers of a county, as a species of 
corporation, are exercised by a board of county commissioners consisting- 
of three persons, elected by the qualified electors thereof. These commis- 
sioners may sue and be sued upon matters in controversy where the county 
is concerned. They have charge of the public buildings, poor houses, 
bridges and public grounds of the county, and the maintenance and sup- 
port of idiots and lunatics. They have authority to establish and vacate 
public roads, and to appropriate funds for their improvement, and they 
have a general supervision over the fiscal affairs of the county. The* 
assessment and collection of taxes is in like mannef entrusted to the- 
county authorities. A marked feature in the general authority of the 
county commissioners under the present statute, is that of being required 
to subscribe for one copy of the leading newspaper of each political party, 
printed and published in the county, and to cause the same to be bound 
and filed in the county auditor's office, as public archives for the gratui- 
tous inspection of the citizens of the county. 

The township organization system, of Ohio, which has been imitated by 
several of the newer States, is the most simple form of the system which 
exists, that can be called township organization. Indeed, among those 
best understanding what the term toivnship organization imports, it is a 
misnomer as applied to the Ohio system. 

In borrowing from New England, Ohio has substituted, instead of the 
select men of the town, three officers, styled trustees. These, with the 
township treasurer and township clerk, constitute the whole force of town- 
ship officers for the management of local affairs, except overseers of high- 
ways for the various road districts. Each township is made a body politic 
and corporate in express terms. The subjects of which the town has control 
are the repair and superintendence of public roads, and the establishment 
of roads of minor or local importance, estrays, health, fences and in- 
closures, and the support of the poor. The supervision of these various 
affairs, and the execution and enforcement of the laws relating thereto, is 
in general committed to the township trustees. 

A noticeable feature, however, in the Ohio township system, is the 
absence of that institution which De Tocqueville so much admired in the 
political system of the New England States — the town meeting ; he adds 
that local assemblies of citizens constitute the strength of free nations. 

An eminent citizen of Marlborough, Mass., in writing up the history of 
that town, speaking of the New England political system, takes occasion to 
remark that " a town meeting is a surer exponent of the will of the people 
than a legislative assembly, whether State or National. The nearer you 
come to the fountain of power, the people, the more clearly you perceive 
public sentiment and learn the popular will. The American revolution 



ITS ORIGIN AND PROGRESS. 27" 

was inaugurated in town meeting, and the history of that great political 
movement may be seen in the Resolutions passed and Acts done in those* 
little assemblies. It was there that the great question was debated, the 
first step taken, the solemn pledge given. Next to the family, the pri- 
mary gatherings of the people exhibit the purest fire of patriotism to light 
up the hopes of the Nation." 

A town meeting, according to the New England system, is an assem- 
bly of the electors of the town, organized as a deliberative body by the 
selection of one of their number to preside as chairman or moderator. 
It is a legislative body composed of the people themselves, and is purely 
a New England institution, growing out of the theory of the early colo- 
nists in church government, — that affairs of common interest should be 
subject to the direction and control of the congregation in their meetings- 
duly convened. When it was found necessary to form a body politic, the 
subject of deliberation became extended beyond the affairs of the church, 
to such as concerned the State. Assemblies for religious worship were 
called simply meetings. The place of assembly was called the meet- 
ing house. Meetings for regulation of public affairs were called town 
meetings, as distinguished from religious meetings. The congregation, 
or electors, would be the same in either instance; none were freemen 
unless admitted to the congregation. 

The first town meeting in New England, or meeting of the congrega- 
tion of Plymouth colony, to consider affairs of common interest, it is 
stated, occurred on the 23d of March, 1621, for the purpose of perfecting 
military arrangements, at which a governor was elected for the ensuing 
year, and it is noticed as a coincidence, whether from that source or oth- 
erwise, that the annual town meetings in the New England States have 
ever since been held in the Spring of the year. New York imitated this 
example, and in every northwestern State where the township system 
exists, the annual town meeting or election of town officers occurs like- 
wise in the Spring of the year, either in March or April. 

The electors under the New England system are not only empowered to 
elect all town officers at their stated annual town meetings, but they have 
power to enact by-laws and ordinances for the regulation of town affairs, 
and to give direction in numerous instances to town officers concerning 
the discharge of their duties. But under the Ohio system, the electors 
have no such power. They are empowered to meet annually and elect 
township officers, but have no power to make by-laws or to give direc- 
tions to the officers whom they elect, for any purpose whatever. Their 
authority ends with the election of township officers. 

The State of Indiana has been more stubborn in its resistance to town- 
ship organization than the neighboring State of Ohio. The early inhabi- 
tants of Indiana were largely from Kentucky, or those States that adhered 
to the county system. The people were called "Hoosiers," and were 
marked as well for their frontier simplicity of life and manners, as for 
their prejudices against the institutions of the Eastern States. To theij 



28 TOWNSHIP ORGANIZATION SYSYEM. 

the term "Yankee " was synonymous with an outlaw, and anything 1 called 
a " Yankee invention " was to be abhorred. 

The county system was here adopted at the beginning of the government 
without modification. But as the influences of eastern immigration 
increased, these early prejudices became relaxed, and a species of the town- 
ship system has been adopted of the nature of that existing in Ohio, but 
more limited in its importance. The counties, as in Ohio, are a species of 
corporation, whose affairs are in like manner committed to the manage- 
ment of three commissioners. The commissioners have authority to divide 
the county into such number of townships "as the convenience of the citi- 
zens may require. Each township being a body politic and corporate, 
the affairs of the township are entrusted to one trustee, elected by the 
voters of the township on the first Monday in April, annually, who is the 
sole township officer. His duties are to receive and disburse the funds of 
the township; to take charge of its educational affairs, and to superintend 
the repairing of public roads. He is one of the inspectors of elections, is 
overseer of the poor and fence-viewer of the township. His most impor- 
tant duties, such as the levy of taxes on the property of the township, are 
performed with the advice and concurrence of the board of county com- 
missioners. Indiana like Ohio, has no such institution as town meeting. 

The State of Michigan was the first of the northwestern States to adopt 
a regular and unqualified system of township organization, being the same 
in its general features as that existing in New York, and known as the 
New York system. In this State a large proportion of the population at 
the time of the formation of the government, were emigrants from the 
State of New York. Township organization was adopted without a con- 
test, and as a natural consequence the New York system was preferred. 
Each county is created a body politic and corporate in express terms, with 
more extensive powers than counties have in Ohio or Indiana. The affairs 
of the county are managed by a county board, whose powers and duties 
are defined, and extended to many objects which in Ohio and Indiana are 
exercised by the State legislatures. This board is styled the board of 
supervisors, and is composed of one delegate from each organized town- 
ship, called supervisor of the town, with additional representation in case 
of populous cities. This board forms a deliberative body, conducting its 
proceedings according to parliamentary rules and usages, and is some- 
times styled the county legislature. Its duties, in their nature, are both 
legislative and executive, or ministerial. 

The township is sovereign and supreme within the scope of the powers 
gTanted, but the powers are not as extensive as those reserved to towns 
in New England, and, unlike the New England system, there is no execu- 
tive head for general purposes in administering public affairs, as the board 
of select- men. The officers of the township are one supervisor, who is ex 
officio a member of the county board, a township clerk, a treasurer, a 
board of school inspectors, directors of the poor, assessors, board of com- 
missioners of highways, justices of the peace and constables, all of whom, 
except constables, have various duties assigned them in the management 



ITS ORIGIN AND PROGRESS. 29 

of township affairs. The officers of the township are elected annually, by 
the electors thereof, except justices of the peace, whose term of office is 
four years, commissioners of highways three years, and school inspectors 
two years, being- so arranged or classified that the the term of the incum- 
bent of one of these several officers expires annually. The town meeting' 
exists in Michigan, and is conducted in the manner of the New England 
system, the supervisor of the town acting as moderator. The annual 
meeting is on the first Monday in April. Each township is made a body 
corporate, with the usual powers granted to such corporations. The 
grant of power to the inhabitants at town meeting is given in general 
terms, and in the exercise thereof is left largely to their discretion. The 
electors have authority to vote sums of money, not exceeding such 
amounts as are limited by law, as they may deem necessary for defraying 
proper charges and expenses arising in the township. They have author- 
ity also to make all such orders and by-laws for restraining cattle and 
other animals from going at large in the highways, and for directing and 
managing the prudential affairs of the township, as they shall judge 
most conclusive to the peace, welfare, and good order thereof. 

The supervisor is the chief officer and representative of the township, 
and it is his duty to prosecute and defend all suits in which the township 
is interested. The township clerk keeps the records of the township, and 
the treasurer takes charge of its funds. The establishment, vacation and 
repair of public roads is committed to the three commissioners of high- 
ways. The supervisor, the two justices of the peace whose terms of office 
soonest expire, and the township clerk, constitute a township board for 
examining and auditing the accounts of the town. Their action in this 
regard is required to be reported to the next annual town meeting. 

The State of Wisconsin was next in order in adopting township organ- 
ization. It commenced while in its territorial condition with the county 
system. But like the State of Michigan, the inhabitants becoming 
mostly of New York emigration, the township system of that State, with 
some modifications, became adopted. Counties are created bodies politic 
and corporate with much the same powers as counties in the State of 
Michigan; the county board was originally formed in like manner, but 
became changed a few years since to representation by districts; each 
district being comprised of two or more towns, thereby greatly reducing 
the number composing the board. The plea for this change was the 
reduction of expenses in the per diem of members. 

Each town is made a body corporate, with similar powers of townships 
in the State of Michigan. The town officers are three supervisors, one of 
whom is designated as chairman, a town clerk, a treasurer, four justices 
of the peace, as many constables as the electors may determine at town 
meeting, not exceeding three, one assessor, a sealer of weights and 
measures, and one overseer of highways for each road district in the town. 
The electors are empowered to vote money for the support of common 
schools, for the repair and building of roads and bridges, for the support 
of the poor, and for defraying proper town charges and expenses. They 



30 

have the same power to make orders and by-laws, and for the like pur- 
poses, as the electors of townships in the State of Michigan. Town 
officers are elected annually by the electors of the town, except justices of 
the peace, whose term is four years, classified so that the term of two of 
them shall expire every two years. The three supervisors are the execu- 
tive head of the town and correspond to the selectmen of towns in New 
England. They are the commissioners of highways, and overseers of the 
poor of the town, and have the general charge of its fiscal affairs. The 
town meeting exists in Wisconsin the same as in Michigan. The chair- 
man of the town board of supervisors is the moderator. The annual 
town meeting is held on the first Tuesday in April. 

Illinois was the next State in the order of time to adopt township organ- 
ization. The history of the introduction and perfection of the system hi 
its present form, shows a contest amounting to bitterness. Illinois was 
once a county of Virginia, and when it passed into a territorial organi- 
zation, it retained the Virginia notions of government. The introduction 
of township organization was a compromise in the constitution, as revised 
in 1848, wherein it was directed that the General Assembly should provide 
by general law for a township organization, under which any county 
might organize whenever a majority of the voters of such county at any 
•general election should so determine. The General Assembly at its first 
session thereafter made provision as directed, and in doing so adopted the 
New York system, modified, however, to a certain extent, from being 
necessarily engrafted upon the existing county system. Most of the coun- 
ties north of the Illinois river promptly availed themselves of this provis- 
ion, and adopted the township system. As a coincidence, it is noticed, 
however, that the inhabitants of those counties were mostly from New 
York and the New England States. Other counties have followed their 
example from time to time, until of the one hundred and two counties of the 
State, seventy-eight of the number have accepted township organization. 

The system adopted in Illinois, as perfected at the present time, is essen- 
tially the same as in Michigan. Counties and towns are bodies corporate 
and pohtic, with like powers; the county board is formed in the same 
manner; the town officers are the same with the exception of town treas- 
urer, and who have the same authority and duties as provided by the laws 
of Michigan. The town meeting exists in Illinois in the form established 
in Michigan and Wisconsin, except that the moderator is chosen by the 
electors assembled. The annual town meeting is held on the first Tues- 
day in April. The electors have the like powers at their town meetings 
to make orders and by-laws as provided by the statutes of Michigan and 
Wisconsin. The Supreme Court of Illinois have construed the statute of 
that State liberally in this regard for the purposes intended. 

It is to be observed that in none of the newer States has township 
organization been adopted without a contest. In this regard Minnesota 
affords a peculiar example of vacillation. While in its territorial con- 
dition, the county system existed; on becoming a State the township 
. organization was adopted by copying the statutes of Illinois on the subject 



ITS ORIGIN .AND PROGRESS. 31 

in their crude condition, as then existing-. After the lapse of about two 
years it returned to the county system, designedly expunging from their 
statutes every vestige of township organization. But the clamor of the 
people, who were mostly of New England origin, compelled a restoration 
■of the township system, which still continues. The system lastly adopted 
is essentially the same as that existing in Wisconsin, with some features 
of the Illinois statute, originally borrowed from New York. The town 
meeting is organized and conducted the same as in Illinois. 

The State of Iowa, whilst it claims to have learned wisdom by experi- 
ence, and at one time partially recognized the excellence of the princi- 
ples of the township system, is but a shade removed from the prejudices 
of Indiana. In organizing the State government it adopted the Indiana 
township system, except it provided for three trustees and a township 
clerk, and authorized the holding of township meetings. Counties were 
made bodies corporate for civil and political purposes, but the management 
and control of the public and fiscal affairs of the county was committed 
solely to one person called the county judge. The result was, improvident 
management in the erection of county buildings, and disregard of econ- 
omy in public affairs, whereby serious and oppressive burdens were visited 
upon the tax-payers; as a remedy for the evils complained of, the people 
• demanded that the county board be increased in numbers, and con- 
structed upon the representation principle, so that the members would be 
•directly accountable to the people for their action. Whereupon the 
State swung to the other extreme; not only inaugurating the New York 
system of a board of supervisors, composed of one delegate from each 
township, but provision was made for further representation by additional 
delegates, according to increased population. Thereupon that interest 
which had shaped the original policy of entrusting public affairs to the 
fewest hands possible, found opportunity for portraying the burdens 
which were to follow the expense of so numerous a body of public officers. 
This argument, whether the evils urged were real or imaginary, suc- 
ceeded, and the county board became reduced to three in number, leav- 
ing the people of each county to increase the number, in their discretion, 
to five or seven members, the style of the board still being The Board of 
Supervisors. 

In 1871, the State of Missouri, becoming inhabited largely — within a 
few years preceding — by people from the more Northern and Eastern States, 
succeeded in passing an act for adopting township organization by vote 
of counties in a similar manner^ as provided by the statute of Illinois, the 
act for establishing the system being copied nearly verbatim from the 
laws of that State. But being engrafted on the existing county system 
of Missouri, it renders their township organization at the present time 
quite imperfect. A number of counties have voted favorably and organ- 
ized under the law, and continued effort is being made to make the system 
.general throughout the State. (1) 

(1) The Legislature of Missouri, at its session, 1877, repealed the Township Organ- 
ization Act. and returned to the county system. 



32 TOWNSHIP ORGANIZATION SYSTEM. 

Of the remaining States, which are classed as among the newer States^ 
there are none which have adopted the township system that may be 
called township organization. In many of them, however, the counties 
are subdivided into districts — which are called townships for school pur- 
poses; the same as election districts and the like in the State of Indiana. 

It is noticeable, from the account here given of township organization 
in the newer States, that in its progress it has in general met with vigor- 
ous resistance. Conceding this system to be what eminent publicists and 
statesmen have claimed for it — that it is the life and mainspring of Amer- 
ican liberty — we shall look with much concern for the causes which have 
inspired this resistance. They are but the result of prejudices through 
early education and example, springing from remote circumstances to 
which we have here had occasion to allude, and which distinguishes be- 
tween the two branches of the Anglo-American family, observed by De- 
Tocqueville to have grown up, without entirely commingling. 

And whilst one may continue to contend for that system which removes 
the administration of public affairs from the immediate influence of the 
people, through the institution of these local organizations, the spirit of 
the other will as earnestly insist that these small independent republics* 
with their unlimited sovereignty in matters of local concern, are the cra- 
dles and nurseries of that habit of political debating and acting which 
are essential in the training of intelligent and useful citizens. 



LAWS OF ILLINOIS, 

RELATING TO 

Township Organization 



AND 



Management of County Affairs. 



DIVISION I. 

TOWNSHIP ORGANIZATION ACT. 

AN ACT to revise the law in relation to township organization. [Approved and in force March 
4th, 1874. Rev. Stat.. Ch. 139.] 

AETICLE L 

HOW TOWNSHIP OKGANIZATTON ADOPTED. 
Section. 

1. At general election. 

2. Petition. 

3. Returns. 

4. When township government to commence — Majority vote defined. 

5. Commissioners appointed. 

6. Division of county into towns. 

7. Naming of towns. 

8. Report of commissioners. 

9. Abstract of report sent to auditor — Record. 

10. Where names are alike. 

11. Auditor's record of names, etc. 

12. First town election. 

13. Notices of first town election. 

14. Conducting election. 

15. Justices and constables. 

16. Commissioners of highways. 

17. Refusal to organ ize— ^Second election. 

18. Continued refusal to organize. 

19. Failure to qualify. 

20. Part of county not organized. 

1. At general election.] § 1. That at any general election 
that may be holden in the several counties in this state, the 
3 



34 TOWNSHIP ORGANIZATION ACT. [DIV. L 

qualified voters in any county may vote for or against township 
organization in such county. (1) [L. 1861, p. 216, § 1. 

2. Petition.] § 2. The county board, on petition of fifty or 
more legal voters of said county, shall cause to be submitted to 
the voters of the county the question of township organization 
under this act, by ballot, to be written or printed, or partly 
written and partly printed, "For township organization" or 
"Against township organization," to be canvassed and returned 
in like manner as votes for county officers. (2) [L. 1861, p. 
216, §2. 

8. Returns.] § 3. The county clerk shall enter an abstract 
of the returns of said election, to be made out and certified as in 
elections for county officers, record the same at length upon the 
records of the county, and shall certify the same to the auditor 
of public accounts. [L. 1861, p. 216, § 3. 

(1) The Constitution concerning township organization, Art. 10, provides: 

Sec. 5. The General Assembly shall provide, by general law, for township organization, under 
which any county may organize whenever a majority of the legal voters of such county, voting 
at any general election, shall so determine, and whenever any county shall adopt township or- 
ganization, so much of this Constitution as provides for the management of fiscal concerns of 
the said county by the board of county commissioners may be dispensed with, and the affairs of 
said county may be transacted in such manner as the General Assembly may provide. And in 
any county that shall have adopted township organization, the question of continuing the same 
may be submitted to a vote of the electors of such county at a general election, in the manner 
that now is or may be provided by law; and if a majority of all the votes cast upon that ques- 
tion shall be against township organization, then such organization shall cease in said county; 
and all laws in force in relation to counties not having township organization, shall immedi- 
ately take effect and be in force in such county. No two townships shall have the same name, 
and the day of holding the annual township meeting shall be uniform throughout the State. 

Sec. 6. At the first election of county judges under this Constitution, there shall be elected in 
each of the counties in this State, not under township organization, three officers, who shall be 
styled "the board of county commissioners," who shall hold sessions for the transaction of 
county business as shall be provided by law. One of said commissioners shall hold his office 
for one year, one for two years, and one for three years, to be determined by lot; and every year 
thereafter one such officer shall be elected in each of said counties for the term of three years. 

Skc 7. The county affairs of Cook county shall be managed by a board of commissioners of 
fifteen persons, ten of whom shall be elected from the city of Chicago, and five from towns out- 
side of said city, in such manner as may be provided by law. 

(2) Form of Petition to County Board for Township Organization. 
To the honorable the county board of the county of , State of Illinois: 

The undersigned, legal voters of said county of , would respect- 
fully represent, that in their opinion the people of said county desire to 
adopt township organization ; they do therefore petition your honorable 
board to cause to be submitted to the voters of said county, at the next 
general election, to be held on the first Tuesday after the first Monday in 
November next, the question of township organization, that they may 
vote upon the adoption thereof. 

And your petitioners will ever pray. 

Dated this day of , A. D. 18—. 

The power to hold elections for adoption of township organization flows from 
the action of the county board. It is not vested in the clerk or other officer; their acts, unau- 
thorized, would confer no power to hold an election ; but when the body has acted who possess 
the power, and the officer acting under their requirements give the notice, then the authority of 
the law has been invoked and properly put into action. The statute does not require the order 
of the county board, submitting the question of township organization to a vote of the people, 
to be spread on the record. If this is neglected, the subsequent action of the county board to 
that effect suilicientlv proves the making of such order. The neglect of the clerk to enter the 
order should not have the effect to defeat the will of the people. People ex rel. v. Garner, 47 III. 
R., 2-17. 



AET. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 35 

A. When township government commences — Majority vote 
defined.] § 4. If it shall appear by the returns of said election 
that a majority of the legal voters of said county are for town- 
ship organization, then, the county so voting in favor of its 
adoption shall be governed by and subject to the provisions of 
this act on and after the first Tuesday of April next succeeding : 
Provided, that a majority of the voters voting at such election 
shall be taken and deemed a majority of the voters of said 
county. (1) [L. 1861, p. 216, § 4. 

5. Commissioners appointed.] § 5. The county board shall, 
at its next session, appoint three commissioners, residents of 
the county, to divide the county into towns. The commissioners 
so appointed shall be paid for their services by the county. (2) 
L. 1861, p. 216, § 5. 

6. Division of county into towns.] § 6. The commissioners so 
.appointed shall proceed to divide such county into towns, mak- 
ing them conform to the townships according to government sur- 
veys. Fractional townships may be attached to adjoining towns, 
where the number of the inhabitants or the amount of territory 
thereof shall not be sufficient for a separate town. "Where a 
township shall have too few inhabitants for a separate organiza- 

(1) The right of a county to adopt township organization, under the provisions of 
our Constitution, is expressly made to depend upon an affirmative vote of a majority of all the 
citizens Avithin the county entitled to vote on the question. The legislature does not possess the 
power to provide any other mode of township organization than as prescribed by the Constitu- 
tion. The power of the county board over the affairs of the county, continues until the town- 
ship organization is adopted by an affirmative vote of a majority .of all the legal voters of a 
county. People v. Brown et al., 11 111. R., 478. This decision was made under the township act of 
1849, which was substantially the same as this act on the subject in question, except that by this 
•act it is provided that a majority of the voters voting at such election shall be taken and deemed 
-& majority of the voters of said county ; which is settling the question of evidence, by which to 
determine the majority of legal voters of the county at the time of taking the vote. See also 
People v. Warfidd, 20 111. R., 159. 

A question arises as to the mode of ascertaining whether a majority of the voters 
-of a county have cast their votes for township organization. The registry list of voters is no better 
•evidence of the number of legal voters in a district or county than the poll-books. The vote 
cast is prima facie evidence of not only the result of the election, but also of the number of 
legal voters in the county. The registry lists do not rebut or overcome this presumption. Per- 
sons whose names are put upon the registry list, but who do not appear and vote at an election, 
are presumed to have left the election district, and therefore no longer legal voters therein. 
The People ex rel. v. Garner, 47 111. R., 247. 

The legislature has no power to impose a general township organization upon 
the people of a county, in any other manner than that provided in the Constitution (see People 
v. Brown, 11 111. R„ 478), which is by vote of the people. Yet it seems, in the absence of any 
prohibition, the legislature may provide for the incorporation of a town for municipal purposes 
six miles square in extent, as well as a village with less territory. Greeley et al. v. The People, 60 

(2) There is no appeal from the order of the county hoard in declaring township 
organization adopted, or in appointing commissioners to divide the county into towns. The law 
in regard to appeals from orders of that board does not apply to that case. Where the question 
of township organization was submitted and declared adopted, and commissioners appointed to 
divide the county into towns, but no action was had, and the matter was again submitted after 
the lapse of several years, and it was again declared in the affirmative, and commissioners, to 
■divide the county into towns, were again appointed who performed their duties, and the county 
organized accordingly: Held, that the proceeding was valid. That if the last election was in- 
valid the commissioners would be regarded as being appointed under the first vote, which 
would be regarded as still in force for that purpose, notwithstanding the lapse of time and the 
second submission. People ex rel. v. Gamer, 47 111. R., 247. 



36 TOWNSHIP ORGANIZATION ACT. [DIV. L 

tion, then such, township may be added to some adjoining town, 
or divided between two or more towns, for the time being. And 
when a creek or river so divides a township that it is inconven- 
ient for transacting town business, then such creek or river may 
be made the town boundary, and the fractions so formed may be 
disposed of as other fractional townships. (1) [L. 1861, p. 217, § 6. 

7. Naming of towns.] § 7. Towns shall be named in accord- 
ance with the express wish of the inhabitants of the town, and 
if there shall not be a degree of unanimity as to the name, the 
commissioners may designate the name: Provided, that the 
county board shall have power to change the name of any town 
in their respective counties, upon a petition of a majority of the 

. voters of said town: And, provided further, that no two towns 
in the state shall have the same name. [L. 1861, p. 217, § 7 ; L, 
1859, p. 129, § 1. 

8. Report of commissioners.] § 8. The commissioners so ap- 
pointed shall make a written report of their proceedings, giving 
the names and bounds of each town, and present such report to 
the county clerk on or before the first day of March next suc- 
ceeding. (2) [L. 1861, p. 217, § 8. 

(1) In the division of a county into towns "by the commissioners, it is the inten- 
tion of the ]a\v.that it shall be made in accordance with the lines of the surveyed or govern- 
ment townships so that each government township shall be set off and erected as an organized 
town under this act, and it is the duty of the commissioners to divide the county accordingly ; 
it would seem that they have not authority to divide it otherwise. The instances where they 
can depart from this rule are clearly expressed in the above section. The powers of the board 
of supervisors subsequently to create new towns and change town boundaries, are not thus re- 
stricted. See A.rt. Ill, § 1, post. 

In dividing the county into towns the law has laid down a rule to De observed. 
If the commissioners depart from what is believed to be the intention of the law, and exceptions- 
are taken to their report on return, the county board would perhaps have power to reject it, and 
recommit the matter for further action of the commissioners. If this is not done the report will 
be regarded as regular, and no question can thereafter be raised to defeat it in that regard. Peo- 
ple ex rel. v. Garner, 47 111. R. 247. 

(2) Form of Report of Proceedings of Commissioners appointed to Divide 

County into Towns 

To the honorable the county board of the county of , State of Illinois. 

The undersigned, commissioners appointed by said board, at the De- 
cember term thereof, A. D. 18—, to divide said county of into towns, 

agreeably to the statute to provide for township organization, respectfully 
report that they have performed the duty assigned to them, and have di- 
vided said county into towns, and given names thereto as follows to-wit : 

All that territory known and described by government survey as town- 
ship number — , of range number — , is erected into a town to be called the 

town of . 

All that territory known and described, etc., [continue by describing 
each town as aforesaid.'] 
All of which is respectfully submitted. 

A.B.,) 

C. D., > Commissioners. 
E. F., > 
Towns, although duly described and named by the commissioners, would not attain 



ABT. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 37 

9. Abstract of report sent to auditor — Record.] § 9. The 

county clerk shall, within thirty days after receiving such report 
of the commissioners, transmit by mail to the auditor of public 
accounts of this state, an abstract of such report, giving the 
bounds of each town and the name designated, and said clerk 
shall record, in a book kept for that purpose, the report of said 
commissioners. [L. 1861, p. 217, § 10. 

10. Where names are alike.] §10. If the auditor of public 
accounts, on comparing the abstracts of the reports from the 
several counties, shall find that any two or more towns are named 
alike, he shall so inform the clerk of the county which last 
adopted such name, and the county board of such county shall, 
at its next meeting thereafter, adopt for such town some different 
name ; and when such name shall be adopted, the county clerk 
shall inform the auditor of public accounts, as before directed. 
[L. 1861, p. 217, § 11. 

11. Auditor's record of names, etc.] §11. The auditor of 
public accounts shall keep a record of the names and bounda- 
ries of the several towns. [L. 1861, p. 218, § 12. 

12. First town election.] § 12. The county board shall, at 
least twenty days before the first Tuesday in April next after the 
adoption of township organization, designate some central and 
convenient place in each town for the holding of the first town 
election, and shall also appoint three suitable electors of the 
town as judges of said elections. 

13. Notice of first town election.] § 13. The county clerk 
shall thereupon make out notices, stating the time (which shall 
be the first Tuesday of April thereafter) and place for holding 
the first town election, and the names of the judges of election 
so appointed, and deliver such notices to the sheriff of the 
county, who shall cause the same to be posted in not less than 
three of the most public places of the town, and not less than 
fifteen days before the time of the holding of such election.(l) 
,[L. 1861, p. 217, § 9. 

to the full power of such corporations until a completion of their organization by the election 
of town officers. Wells v. Burbank, 17 N. Hamp. R., 393. 

The supreme court will take judicial notice of the fact that a county has adopted 
township organization. County of Rock Inland v. State, 31 111. R., 543. 

(1) Form of Notice by County Clerk for First Town Election. 

TOWN ELECTION NOTICE. 

Public notice is hereby given that the first town election under town- 
ship organization for the town of , in the county of , and State 

of Illinois, will be held in said town on Tuesday, the day of April, 

A. D. 18 — , being the first Tuesday in said month, at [give the place desig- 



38 TOWNSHIP OKGANIZATION ACT. [DIV. L. 

14. Conducting election.] § 14. The first town election shall 
be conducted in the same manner as other town elections. (1) 

15. Justices and constables.] §15. The justices of the peace, and 
constables residing in any town organized pursuant to this act 
shall continue to hold their office for the time for which they 
were elected, and shall be considered as justices and constables 
of such town ; but if the number of justices of the peace and 
constables allowed by law shall not reside in any such new town,, 
the electors thereof may, at the first town election, elect a suffi- 
cient number of justices and constables, who shall hold their 
offices until the next election at which justices of the peace and 
constables may be elected, as provided by law, and until their 
successors are elected and qualified. (2) 

16. Commissioners of highways.] § 16. Of the commissioners 
of highways elected at the first election, one shall hold his office 
for one year, and one for two years, and the other for three years, 
to be determined between them by lot before entering upon the 
duties of their office, and until their respective successors are 
elected and qualified.(3) [L. 1861, p. 266, § 7, 8. 

netted for holding the ejection], for the election of [give the title of the 
several offices to be filled], which election will be opened at eight o'clock 
in the morning, and continue open until seven o'clock in the afternoon of 
that day. 

The names of the judges of election appointed by the county board are 
C. D.,E. F. andG. H. 

Dated at , this day of , in the year of our Lord one 

thousand eight hundred and . 

A. B., County Clerk. 

For list of town officers to be elected at tne town election, see Art. VII, \ 1, post. 

(1) For manner of conducting town elections, see Article VII, post. The term "town 
election " fails to express what is evidently intended by the above section. Town elections, as 
such, have no separate existence apart from the town meeting. A toun meeting is an assemblage 
or congregation of the legal voters or electors of the town for the transaction of all matters 
that may come before the meeting within the powers of the electors ; one of these is the election 
of town officers. Thus the election of town officers, or town election, is a mere incident to a. 
town meeting. The term, " first town election," as used in this article, must, therefore, be con- 
sidered as comprehending the whole subject of a town meeting. 

Towns exist at the pleasure of the state, and not their own. They are but an agency 
in the state government. Gorham v. Springfield, 21 Maine R„ 58. 

When people, under color of law, have organized themselves into towns, and have 
gone on for 10 years raising taxes, making improvements, and exercising their usual franchises, 
their rights are to be regarded as depending on acquiescence as much as on the regularity of 
their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. 
People v Maynard, 15 Mich. R., 463. 

From proof that many years ago a town appointed town officers and conducted its- 
affairs as an organized town, its legal organization may be presumed. Londonderry v. Andover, 
28 Vt. R M 416. 

(2) The above section sets out upon the principle that justices of the peace and con- 
stables thus elected are elected as if rilling vacancies, the term expiring at the same time as- 
other justices of the peace and constables in the county. The full term of justices and consta- 
bles fixed by the Constitution is four years. Const., Art. 7, Sec. 32. 

(3) The law has not provided a mode toy whicln the persons elected commissioners 
of highways shall conduct the proceeding by lot to determine the term of office of each. Thejr 



ART. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 39 

17. Refusal to organize— Second election ] § 17. If any to^n 
shall refuse or neglect to organize and elect town officers, the 
county board of the county may order another election for that 
purpose, and state the time and place of holding the same, notice 
of such election to be given as required for the first election. [L. 
1861, p. 219, § 2. 

18. Continued refusal.] § 18. If the town shall not then or- 
ganize and elect officers, the board may, at any regular or special 
meeting, appoint the necessary officers for such town, and the per- 
sons so appointed shall hold their offices until the next annual 
town meeting, and until their successors are elected or appointed 
and qualified. [L. 1861, p. 219, § 2. 

19. Failure to qualify.] § 19. If the persons so appointed 
shall fail to qualify, as required by law, or if, at any time after the 
organization of the town, the electors thereof refuse to elect or 
appoint officers, or to exercise the powers required by law, the 
county board may annex such town to an adjoining town, and the 
town so annexed shall thereafter constitute a part of the town to 
which it is annexed. [L. 1861, p. 219, § 3. 

20. When part of county not organized] § 20. When, in any 
county under township organization, there is any territory co-ex- 
tensive with the limits of a city situated therein, and which is not 
included within any organized town, such territory shall consti- 
tute a town by the name of such city, and all the provisions of 
this act shall apply to the town so constituted, the same as if it 
had been organized in the manner provided in this act in the case 
of the organization of new towns. 



are left to choose their own mode in this regard. When they have made their determination, 
in order that some proper record thereof may exist, it would be advisable to have their deter- 
mination reduced to writing, and filed with the town clerk. The following may be the form : 

Form of Determination of Commissioners of Highways by Lot for Term, 

of Office. 



County, 



Town of 



■J 



We, A. B., C. D. and E. F., being elected commissioners of highwu; ; 

for said town of at the first town election in said town, held oh 

the day of — 18 — , have determined between us by lot that the 

said A. B. shall hold his office for three years, the said C. D. for two 
years, and the said E. F. for one year. 

Witness our hands, this day of , A. D. 18 — . 

A. B., 
CD., 
E. F. 

The commissioners of highways are required to determine by lot the term of 
each before entering upon the duties of their office. Hence, it would seem to follow, that if they 
neglect such determination beyond the time for qualifying, the office would become vacant. 



40 TOWNSHIP ORGANIZATION ACT. [DIV. L 

AETICLE II. 

HOW DISCONTINUED. 

Sbction. 

21. Petition— Election. 

22. Result of election. 

23. Election of county commissioners. 

24. When commissioners assume duties, etc. 

25. Disposition of town records, business and property. 

21. Petition — Election.] § 1. Upon the petition of at least 
one-fifth of the legal voters of any county having adopted town- 
ship organization, to be ascertained by the vote cast at the last 
preceding presidential election, the county board shall cause to be 
submitted to the voters of such county, at the next general elec- 
tion, the question of the continuance of township organization, to 
be voted on by ballots, written or printed, or partly written and 
partly printed, " For the continuance of township organization," 
or, "Against the continuance of township organization ; " notice 
to be given, and the votes to be canvassed and returns made in 
like manner as in this act provided in reference to a vote on the 
adoption of township organization. (1) [L. 1861, p. 235, § 4. 

22. Result of election.] § 2. If it shall appear, by the returns 
of said election, that a majority of the votes cast on that ques- 
tion, at said election, are against the continuance of township 
organization, then such organization shall cease in said county, as 
soon as a county board is elected and qualified ; and all laws re- 
lating to counties not under township organization, shall be appli- 
cable to such county, the same as if township organization had 
never been adopted in it. [L. 1861, p. 265, § 5. 

23. Election of County Commissioners.] § 3. When township 
organization shall cease in any county, as provided in this act, 
a special election shall be held in such county on the first Mon- 
day of January next following, for three county commissioners, 
one of whom shall hold his ofiice until the next general election 
of county commissioners, one until a year from the next general 
election, and the other until two years after the next general 
election, to be determined by lot, and until their successors are 
elected and qualified ; and at every yearly general election after 

(1) The legislature has no authority to repeal the law for township organization, 
unless it adopts the same course and provides the same guaranties to protect the rights of all, 
required by the Constitution to be observed in the adoption of the township system. People v. 
Couchman, 15 111. R., 112. 

The question of discontinuing township organization can only be submitted to 
a vote of the electors of such county at a general election. The annual town meeting is not a 

feneral election within the meaning of Sec. 5, Art. 10 of the Constitution. Opinion Att'y Gen'l 
Idsall, March 6, 1873. 



ART. in.] ALTERATION OF BOUNDARIES, ETC. 41 

such special election, one such officer shall be elected. [L. 1861, 
p. 266, § 6. 

24. When commissioners assume duties, etc.] § 4. The 

county board elected at the special election, as provided in the 
next preceding section, shall assume the duties of their office on 
the first Monday of February next after their election, and shall 
be the legal successors to the county board of such county, and 
shall have all the rights and emoluments, and be subject to all 
the liabilities as provided in other cases of counties not under 
township organization. 

25. Disposition of town records, business, property, etc.] 

§ 5. "When township organization is discontinued in any county, 
the records of the several towns shall be deposited in the county 
clerk's office, and the county commissioners of the county shall 
have power to close up all unfinished business of the several 
towns, and sell and dispose of any of the property belonging to 
the town, for the benefit of the inhabitants thereof, as fully as 
might have been done by the towns themselves, and to pay all 
the indebtedness of any town existing at the time of such dis- 
continuance, and cause the amount thereof, or so much as may 
be necessary, to be levied upon the property of the town. 



AKTICLE III 

<QF THE ALTERATION OF BOUNDARIES, AND DIVISION OF TOWNS AND 

TOWN PROPERTY. 

Section. 

26. Powers of county board. 

27. Election in newtowns. 

28. Terms of officers. 

29. Taxes. 

30. Disposition of real estate on division of towns. 

31. Disposition of real estate on annexation of towns. 

32. Disposition of personalty. 

33. Meeting of supervisors and assessors. 

34. Burial Grounds. 

35. Apportionment of debts. 

36. Disputes submitted to county board. 

37. Proceedings to unite towns. 

26. Powers of County Board.] § 1. The county board of each 
county shall have full and complete power and jurisdiction to 
alter the boundaries of towns, to change town lines, and to divide 
enlarge and to create new towns in their respective counties, to 
isuit the convenience of the inhabitants residing therein, but no 
new town shall be created under the provisions of this act of less 



42 TOWNSHIP ORGANIZATION ACT. [DIV. L. 

territory than seventeen square miles, nor unless tliere shall 
be at least fifty legal voters residing in such new town, nor 
unless at least twenty of the legal voters of such town shall 
petition for such alteration ; nor shall any new town be made, 
or any town divided, or the boundaries of any town changed by 
the county board without notice thereof having been given by 
posting up notices in not less than five of the most public places 
of the town interested, or if several towns are interested, in each 
of them, at least sixty days before the final action of the board, 
and also by publishing such notice at least three times in some 
newspaper published in the county wherein said towns are situ- 
ated, if any shall be published therein : Provided, that no incor- 
porated town shall be divided, except consent thereto is given by 
a majority of all the electors voting at a general annual election 
in said town — notice that the question of dividing said town 
will be submitted to the legal voters thereof having been given by 
the county clerk at the same time and in the same manner as the 
notice of said general annual election. (1) [L. 1861, p. 218, § 1. 



(1) The alteration of boundaries, ch.an.ging town lines or enlarging tot 
em to signify about the same thing in either case, being only differently expressed. 



towns, would 



Form of Petition for Alteration of Boundaries, Change of Town Lines, or 

Enlarging a Town, 

To the honorable the county board of the county of , State of Illinois : 

The legal voters of the town of , in said county, do petition your 

honorable board to alter the boundaries of said town of , as follows 

[here set forth the alteration desired]. Such alteration of boundaries will 
not affect any town so that the territory thereof will be less than seven- 
teen square miles. 
And your petitioners will ever pray. 

The words change town lines, or enlarge a town, can be substituted in lieu of the words alter the 
boundaries of, in the foregoing form, when deemed more appropriate. 

Form of Petition for Dividing a Town. 
To the honorable the county board of the county of , State of Illinois : 

The undersigned legal voters of the town of , in said county, do 

petition your honorable board to divide said town as follows {here set forth 
the line of division as desired]. That the territory within the following 
boundaries [state the same] shall continue to form and exist as the said 

town of , and that the territory within the following boundaries 

[state the same] shall form a new town, to be named the town of ; 

that the territory of each of said towns will not be less than seventeen 
square miles. 

And your petitioners will ever pray. 

The foregoing form can be changed to suit the occasion of the creation of a new town. 

The law contemplates, in case of alteration of boundaries, that it shall be peti- 
tioned for by at least twenty legal voters of each town affected. 

Form of Notice of Creating New Town, Dividing Town, or Changing 
Boundaries of Town. 

Public notice is hereby given that petitions will be presented to th& 



AKT. HI.] ALTEEATION OF BOUND ABIES, ETC. 43 

27. Election in new town.] §2. When a town is divided into 
two or more towns, a new election shall be ordered in each of 
the new towns by the county board, and the time and place of 
holding the election shall be fixed, and judges of election 
appointed, and notice given in the same manner as required upon 
the first organization of towns : Provided, that when parts of 
several towns are taken to make a new town, it shall not be neces- 
sary to order an election in the towns from which territory is 
taken ; but if any of the officers therereof shall continue to re- 
side in the new town, his office shall be declared vacant, and filled 
as in other cases of vacancy. 

28. Terms of Officers.] § 3. The officers elected or appointed 
at any such town meeting shall hold their offices until the next 
annual town meeting, and until their successors are elected and 
qualified; except that one of the highway commissioners so- 
elected shall hold his office until the next annual meeting, one 
until the second annual meeting, and the other until the third 
annual meeting, to be determined between them by lot, and until 
their successors are elected and qualified, and except that any 
justice of the peace or constable so elected shall hold his office 
until the next general election of justices and constables, as fixed 
by law. 

29. Taxes.] § 4 The division or alteration of a town, after 
the making out of the assessor's books in any year, shall not in 



county board of the county of , State of Illinois, at the session 

thereof to be held at , on the day of , A. D. 18 — , praying 

for [slate what is petitioned for as set forth in the petitions'] ; and that final 
action of the board will be asked, on said petitions, at the time of presen- 
tation thereof. 
Dated this day of , A. D. 18—. 

THe county board can divide a township only at a regular meeting, and upon 

60 days notice ; and an order for this purpose, that the separation or division shall not take 
effect until the next annual election of town officers, is authorized, and is in accordance with 
the statute. Sup. and Assessor of Hemley Township v. The People ex rel., Barley, 84 111. R., 544. 

On an application by the required number of legal voters to the county board to 
set ov a new town, the published copy of notice need not contain the subscription of the names. 
People v. Carpenter, 24 N. Y. R., 86. 

Tlie act of the county hoard in dividing a town and setting off a new one, described 
only the drviding line. Held, that its uncertainty was cured by its reference to the application 
and notices preliminary to its passage, in which the tract south of the dividing line was desig- 
nated for the new town ; also by proof that the first town meeting ordered to be called for this 
new town was summoned to a place south oi said line, and was composed wholly of men resid- 
ing south of said line People v. Carpenter, 24 N. Y. R., 86. 

The proviso in the statute giving the county hoard power to form new towns, 
and to divide or enlarge towns, requiring a vote in case an incorporated town is to be divided, 
refers to incorporated towns and villages and not to towns under the township organization law ; 
and where no such incorporated town or village is to be divided, by any change of boundaries 
or the formation of a new town, no vote is required. Harris et al. v. Schryock et al., 82 111. R., 119. 

Under the law prohibiting the creation of a new town of less territory than seven- 
teen square miles, where a town is divided, each part of the two towns resulting from the divis- 
ion must contain the requisite territory. In such case, both the towns become new ones formed; 
from the old one. Town of Jefferson v. The People ex rel., 87 111. R., 504. 



4A TOWNSHIP ORGANIZATION ACT. [DIV. I. 

any manner affect the assessment or collection of the taxes assess- 
able or collectable in that year, but the same may be assessed 
and collected in the same manner and by the same officers as if 
no division or alteration had taken place. 

30. Disposition of real estate on division of towns.] § 5. When 
a town possessed of real estate shall be divided into two or more 
towns, the supervisors and assessors of the several towns consti- 
tuted by such division shall meet as soon as may be after the 
first town meetings subsequently held in such towns, and when so 
met shall have power to make such agreement concerning the 
disposition to be made of such town property and the apportion- 
ment of the proceeds as shall be equitable, and to take all meas- 
ures and execute all conveyances which may be necessary to 
carry such agreement into effect. (1) [L. 1861, p. 219, § 4. 

(1) Form of Agreement by Supervisors and Assessors, in case of Division of 
Town, concerning Disposition and Apportionment of Heal estate. 

This agreement, made this day of , A. D. 18 — , by A. B., 

supervisor, and C. D., assessor of the town of , on the part of said 

town, and E. F., supervisor, G. H., assessor of the town of , on the 

part of said town of , in the county of , and State of Illinois, 

witnesseth. That, whereas, the town of , which formerly comprised 

the territory now composing the aforesaid towns of and , has 

lately been divided by proper authority, into two towns, named and styled 

as aforesaid, [or as the case may be], and whereas said town of was 

at such division thereof seized of the following real estate, to wit: [here 
describe the premises]. Now therefore it is agreed by and between said 
supervisors and assessors on the part of their respective towns, that said 
real estate be divided and disposed of for the benefit of said towns, as fol- 
lows: that portion thereof described as follows [here describe it], shall be 

and remain the property of said town of , and the balance thereof 

described as follows [here describe the remaining portion of said premises], 
be sold within three months from this date for the highest sum which the 
same can be sold for, and the proceeds thereof be paid over to said town 

of 

In witness whereof said supervisors and assessors have hereunto set their 
hands and private seals, the day and year first above written. 

A. B., [seal.] 

Supervisor. 

C. D., [SEAL.] 

Assessor. 

E. F., [SEAL.] 

Supervisor. 

G. H., [SEAL.] 

Assessor. 

Tlie foregoing form can Tbe varied to suit the circumstances of each case. Whatever 
agreement is made by the supervisors and assessors, should be reduced to writing in proper form, 
and a copy filed with the town clerk of each town interested. When a division of the property is 
impracticable, it may be appraised by the supervisors and assessors, and the town wherein it is 
situated may pay over to the other town its equitable share of the valuation and retain the whole 
property, when such course is deemed most advisable. It will be seen that the law has clothed 
the supervisors and assessors with ample authority for a proper division of the r^al estate; it has 
authorized them to make agreement concerning the disposition thereof, and such apportionment 
of proceeds as shall be equitable, and to take all measures and execute all conveyances necessary 
to carry their agreement into effect; therefore when it is agreed that the property or any part 



ART. HI.] ALTERATION OF BOUNDARIES, ETC. 45 

31. Disposition of real estate on annexation of towns.] § 6. 

"When a part of any town possessed of real estate shall be an- 
nexed to another town or towns, or taken to form a part of a new 
town, the supervisors and assessors of the town from which snch 
territory is taken, and of the town or towns to which the same 
shall be annexed, or of which it constitutes a part, shall, as soon 
as may be after such alteration, meet for the purpose and possess 
the powers provided in the last preceding section. L. 1861, p. 
219, § 5. 



thereof shall be sold, the supervisors and assessors are authorized to execute the conveyance. A 
question may arise as to who should execute the conveyance, whether the supervisor or assessor 
of the town wherein the real estate is situated, in case of lying all in one town, or whether by the 
supervisors and assessors of the several towns interested. It can do no harm for them all to join 
in the conveyance. Indeed, such may be the more proper course. 

Form of Deed of Conveyance by Supervisors and Assessors Conveying Heal 
Estate where Town is Divided. 

This indenture, made this day of , A. D. 18 — , between A. B. r 

supervisor, and C. D., assessor, of the town of , E. F., supervisor, 

and G. H., assessor of the town of , which towns are in the county 

of , and State of Illinois, party of the first part, and L. M., of said 

county and State, party of the second part, witnesseth : That, whereas, 

saidtownof has lately been divided by proper authority, and said town 

of erected therefrom, [or as the case may be], and whereas said town 

of was at the time of such division seized of the following real estate 

[here describe the whole premises'], and whereas it was agreed by the 
supervisors and assessors of each of the aforesaid towns, that the following 
portion of said real estate should be disposed of for the benefit of said town 
of , [or as the agreement may be], as being the equitable share there- 
of to which said town would be entitled in consequence of such division, 
to-wit: [here describe the portion of the premises to be disposed of]. Now, 
therefore, said party of the first part, for and in consideration of the sum 

of dollars paid by said party of the second part, the receipt whereof is 

hereby acknowledged, have and do grant, remise, release, convey and con- 
firm unto said party of the second part, and to his heirs and assigns for- 
ever, all the following described premises, lying and being in said town of 

, in the county of , and State of Illinois, to-wit, [here describe 

the premises to be conveyed]. To have and to hold the same, together with 
all and singular the appurtenances and privileges thereunto belonging or 
in any wise appertaining, and all the estate, right, title, interest and claim 

whatever which said town of and , or either of them may have 

either in law or equity, to the only proper use, benefit and behoof of the 
said partty of the second part, his heirs and assigns forever. 

In witness whereof, said party of the first part have hereunto set their 
hands and seals the day and year first above written. 
Signed, sealed and delivered V 

in the presence of / A. B., [seal.] 

Supervisor. 

C. D., [seal.] 

Assessor. 

E. F., [seal.] 

Supervisor. 

G. H., [seal.] 

Assessor. 

The foregoing deed should be acknowledged in the usual form. 



46 TOWNSHIP ORGANIZATION ACT. [DIV. L 

32. Disposition of personal property.] § 7. When a town pos- 
sessed of or entitled to money, rights or credits, or other personal 
estate, shall be divided or altered, such personal estate, including 
moneys, shall be apportioned between the towns interested there- 
in by the supervisors and assessors of such towns according to 
the amount of taxable property in the town divided or altered as 
the same existed immediately before such division or alteration, 
to be ascertained by the last assessment list of such town ; and 
such supervisors and assessors shall meet for the purposes afore- 
said as soon as may be after the first town meetings subsequently 
held in such towns. (1) [L. 1861, p. 220, § 6. 

33. Meeting of supervisors and assessors.] § 8. Whenever a 
meeting of the supervisors and assessors of two or more towns 
shall be required, in order to carry into effect the provisions of 
this article, such meeting may be called by either of said super- 
visors ; but the supervisor calling the same shall give at least ten 

(1) Tlie proceedings of the supervisors and assessors ought properly to be reduced to 
writing, as a memorandum showing how and in what manner the money, rights, credits, and 
other personal property is disposed of or apportioned, and how existing debts are apportioned, 
and a copy filed with other papers, if any, with the town clerk of such town interested. The fol- 
lowing is suggested as a form for such writing or memorandum. 

Form of Proceedings of Supervisors and Assessors in Apportioning Prop- 
erty in case of Division of Towns. 

At a meeting of the supervisors and assessors of the towns of and 

, in the county of , convened at the office of the town clerk of 

said town of , on the day of , A. D. 18 — , [if adjournments 

are had state the adjournment,'] for the purpose of making agreement con- 
cerning the disposition of the real estate lately belonging to said town of 

, and apportioning the proceeds thereof according to law in such 

cases, in consequence of a division of the original town of ■; also for 

the purpose of apportioning between said towns, the money, rights, credits 
and other personal property lately belonging to, and debts owing by said 

town of , the following proceedings were had. The real estate of 

said original town of was ordered to be disposed of and proceeds ap- 
portioned according to written agreement between said supervisors and 

assessors, dated . Said town was found to be possessed of money to 

the amount of dollars, which was apportioned as follows [state how 

apportioned]. Said town was found to be entitled to money arising from 
[state the source from which the money is to be derived] to the amount of 

dollars, which was apportioned as follows, [state how apportioned, 

and continue in like manner setting forth all rights, credits and personal 
property of the town, and debts owing, and how apportioned between the 
towns.'] 

A. B., Supervisor of the 

town of . 

C. D., Assessor of the 

town of -. 

E. F., Supervisor of the 

town of . 

G. H., Assessor of the 

town of . 



.ART. III.] ALTERATION OF BOUNDABIES, ETC. 47 

days' notice in writing, to all the other officers, of the time and 
place at which such meeting is to be held.(l) [L. 1861, p. 220, § 7. 

34. Burial grounds.] § 9. The preceding section shall not, 
however, apply to any cemetery or burial ground, but the same 
shall belong to the town within which it may be situated after a 
division shall have been made. [L. 1861, p. 220, § 9. 

35. Apportionment of debts.] § 10. Debts owing by a town 
so sub-divided or altered shall be apportioned in the same man- 
ner as the personal property of the town, and each town shall 
thereafter be charged with its share of such debts according to 
such apportionment.^) [L. 1861, p. 220, § 9. 

36. Disputes submitted to county board.] § 11. When the sev- 
eral towns cannot agree in relation to a division or apportionment 
of the real or personal property, or debts, or any part thereof, as 
provided in the six preceding sections, the dispute shall be sub- 
mitted to the county board, of the county, whose decision in the 
matter shall be conclusive between the parties. (3) 

37. Proceedings to unite towns-] §12. The county board of 
each county shall have full power and jurisdiction to unite two 

(1) Form of Notice by Suner visor to other officers to Meet and Apportion 
Property in case of Division or Alteration of Town. 

To , supervisor [or assessor] of the town of , county of : 

You are hereby notified that a meeting of the supervisors and assessors 

of the towns of and , will be held at [state the place ivhere~\, 

on Monday, the day of , A. D. 18 — , at the hour of ten o'clock in 

the forenoon, for the purpose of making agreement concerning the dispo- 
sition of the real estate lately belonging to said town of , and appor- 
tioning the proceeds thereof according to the law in such cases, in conse- 
quence of a division of the original town of — , and the erection there- 
from of the town of ; also for the purpose of apportioning between 

said towns the money, rights, credits and other personal property, lately 
belonging to said town of , at which time and place you are respect- 
fully requested to attend. 

Dated at , this day of , A. D. 18—. 

J. W. H., 
Supervisor of the town of . 

(2) The legislature, on the division of a town, may provide, as one of the condi- 
tions or terms of the division, that any burdens, to which the whole inhabitants would be sub- 
jected by the operation of the general laws in force at the time, shall be apportioned between the 
towns, so that they will still be borne by the whole inhabitants who would have been subjected to 
them but for the division, and in doing this, they may fix the relative proportion between the 
towns. Londonderry v. Derry, 8 N. Hamp. R., 320. 

Where, after the division of a township, the town hoards have met, and deter- 
mined the amount of the township indebtedness to be paid by the new township, such amount is 
a fixed and liquidated demand against such new township, which it is the duty of its town board to 
allow, and the clerk to issue his certificate for payment as in other cases. In case the board refuse 
to act, mandamus is the proper remedy. Marathon v. Oregon, 8 Mich. R. ( 372. 

(3) The suh mission of the question of division or apportionment of the property 
under the above, section, in case of disagreement, should properly be in writing stating 'trie 
facts, signed by the supervisors and assessors, or verified by some person having authority in the 

.premises. The following may be the form of such submission : 



48 TOWNSHIP OKGANIZATION ACT. [DIV. L 

contiguous towns into one ; but no such towns shall be united ex- 
cept in the following manner, that is to say : Whenever one- 
fourth of the voters in each of the towns sought to be united 
shall petition the county board to unite such towns, said county 
board shall cause to be submitted to the voters of said towns, at a 
general annual election to be holden in each of such towns, the 
question of uniting. Notice of such election shall be given by 
causing written or printed notices thereof to be posted in five 
public places in each of said towns at least twenty days before 
such election, and by publishing the same in at least one news- 
paper (if auy there be published) in each of said towns, or a 
newspaper published in said county. The ballots cast at such 
election to be written or printed, or partly written and partly 
printed, " For uniting," or, "Against uniting " — to be canvassed in 
like manner as votes for county officers, and returned to the county 
board, who shall cause the votes to be canvassed ; and if a ma- 
jority of voters of each town voting at such election shall vote 
for uniting such towns, such county board at the meeting at which 
such vote is canvassed, or at the next succeeding meeting, shall 
proceed to declare such towns united, and give the united towns a 
name, and define the boundaries thereof : Provided, that the offi- 
cers of each of such towns shall continue to hold their respective 
offices, and discharge the duties thereof, during the remainder of 
the term for which they were respectively elected : And , provided , 
that the commissioners of highways for each of said towns in 

Form of Submission of Question of Division of Property to County Board 

in case of Disagreement between Towns. 
To the honorable the county board of the county of , State of Illinois : 

The undersigned, the supervisor and assessor of the town of , 

and the supervisor and assessor of the town of , of the coun / 

aforesaid, respectfully represent to your honorable board that the town 

of -, which formerly comprised the territory now composing the 

aforesaid towns of and , has lately been divided by proper au- 
thority, into two towns, named and styled as aforesaid, [or as the case 

maybe], and whereas said town of was at such division thereof 

seized of the following real estate [or as the case may be], to-wit: [here 
describe the premises'], and that said towns cannot agree in relation to a 
division of said real estate [or as the case may be] ; the matter is therefore 
submitted to your honorable board for your decision, pursuant to the 
statute in such case made and provided. 

Dated this day of , A. D. 18—. 

A. B., Supervisor of the 

town of . 

C. D., Assessor of the 

town of . 

B. F., Supervisor of the 

town of „ 

G. H., Assessor of the 

town of „ 



ABT. IV.] CORPORATE POWERS OF TOWNS, ETC. 49 

office at the time of such -anion shall continue in and discharge 
the duties of their respective offices during the remainder of the 
terms for which they were elected, and in the discharge of their 
duties shall act in conjunction. And, provided, further, that the 
union of such towns shall not be complete until the expiration of 
the terms of all officers in said towns y^ho are elected to serve for 
the period of one year.(l) 

AKTICLE IV. 

CORPORATE POWERS OF TOWNS, AND THE EXERCISE THEREOF — WHAT 
MAY BE DONE AT TOWN MEETINGS — BY-LAWS, 
RULES AND REGULATIONS. 
Section. 

38. Corporate name. 
' 39. Corporate powers. 

40. What may be done at town meeting. 

1. Orders for sale, etc., of corporate property. 

2. Exercise of corporate powers. 

3. Raising money bj^ taxation for — 
Constructing roads, bridges, etc. 
Prosecuting or defending suits, etc. 
Any other legal purpose. 

Building bridges, etc., in another town. 

4. Provide for conduct of suits, etc. 

5. Prevent growing of Canada thistles. 

6. Encourage cultivation of trees. 

7. Rules in regard to fences. 

8. Regulate the running at large of live stock. 

9. Establish pounds. 

10. Pound masters. 

11. Distraining and impounding of live stock. 

12. Public watering places. 

13. Prevent deposit of night soil, etc. 

14. By-laws, rules, etc. 

15. Application of penalties. 

41. Exception as to cities and villages. 

42. Notice of by-laws, etc. — Taking effect. 

43. Effect of certain conveyances. 

44. How conveyances made. 

38. Corporate name.] § 1. The corporate name of each town 
shall be : " The town of (name of town)," and all acts done by 

(1) Form of Petition for Uniting Two Towns into One. 
To the honorable the county board of the county of , State of Illinois : 

The undersigned, being one-fourth of the voters of the town of , 

in said county of , do petition your honorable board to unite said 

town to the town of , in said county, into one town ; said two towns 

being contiguous towns. 

And your petitioners will ever pray. 

4 



50 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

the town, and all actions by or against the town shall be in its cor- 
porate narne.(l) [L. 1861, p. 218, § 3. 

39. Corporate powers.] § 2. Every town shall have corporate 
capacity to exercise the powers granted thereto, or necessarily im- 
plied, and no others. It shall have power — (2) 



. (1) Concerning legal proceedings in favor of and against towns, see Art. 5, post. 

Where a cause of action exists in behalf of a town, and no officer is by statute author- 
ized to prosecute for such cause of action, it is proper for the electors when convened at town 
meeting to direct snch action to be brougnt. for which purpose they may appoint an agent to 
institute and prosecute the same, but such suit must be brought in the name of the town. 
Cornell, v. Guilford. 1 Den. R. , 510. 

The word " town " under the township system, is a species of municipal incorpora- 
tion, and constitutes an integral part of a county; and such towns are clearly interwoven with 
the management of county affairs, and generally embrace a township according to government 
surveys, Martin v. The People ex rel. 87 111., 525. 

(2) Towns may he considered as quasi corporations, with limited powers co-exten- 
sive with the duties imposed on them by statute or usage, but restricted from a general use of 
the authority which belongs to corporations by common law. Rumford v. Wood, 13j Mass. R., 
193 ; Drake et al. v. Phillips et al., 40 111. R., 388. 

These organized towns or townships are not municipal corporations in the sense which the 
term is ordinarily used in our statutes. They are regarded as quasi corporations. See Norton v. 
Peck, 3 Wis. R., 714. And as such have power to impose taxes for specific purposes. Drake et al. 
v. Phillips et al., 40 111. R., 388. 

The constitution recognizes counties, cities, towns and townships as municipal- 
ities: Art. on Mun. Sub. to R R. And it recognizes counties, cities, townships and school dis- 
tricts as municipal corporations. (Jonst. Art. 9, g 12. As contemplated by the Constitution, a 
township is a territorial subdivision of a county for purposes of local government. Const. Art. 
10, § 5. Town and village are regarded as synonymous, and meaning the same thing. A town 
or village is a small collection of houses in a compact form, which may or may not be incorpor- 
ated. If incorporated, it usually possesses limited powers. A city is a large incorporated town, 
with more extensive powers m accordance with the demands of its population. Its affairs are 
controlled by a mayor and aldermen. 

in our statutes concerning township organization, the word " town " is used as synonymous 
With township. 

The whole power and capacity of towns, as corporations, is derived from and con- 
ferred by statute, and is specified and confined by certain functions only. Their authority to 
contract or assume liabilities is restricted to cases where such action is necessary for the exer- 
cise of their appropriate functions as corporations, and their power to sue and be sued must be 
limited to cases where the assertion of their corporate rights, or the enforcement of their corpor- 
ate liabilities, requires such proceeding. Town of Pishkill v. Fishkill & Beekman Plank Road Co., 
22 Barb. R., 634. 

Towns do not hold their powers ordinarily under any grant from the govern- 
ment to the individual corporation ; or by virtue of any contract with the government, or upon 
any condition, express or implied. They give no assent in their corporate capacity to the laws 

which impose their public duties or fix their territorial limits. Perley, Ch. J., in Eastman v. 

Meredith, 26 N. Hamp. Rep., 284, 290. And they derive none of their powers from, nor are any 
duties imposed upon them by the common law. They have been denominated quasi corporations, 
and their whole capacities, powers and duties are derived from legislative enactments. Shepley, 
Ch. J., in Hooper v. Emery, 14 Maine R. (2 Shep.), 375. 

Towns derive all their powers from legislative enactments, and all their duties 
are imposed thereby. Hooper v. Emery, 14 Me. R., 375. Like other corporations they have no 
powers except such as are expressly or impliedly granted to them, by the legislative power of 
the state. Baldwin v. North Brandfbrd, 32 Conn. R., 47. Booth v. Woodbury, Id., 118. Webster v. 
Harwinton, Id., 131. 

It is held that a town may indemnify its officers against a liability which they may 
incur in the bona fide discharge of their duties, although it turns out that they had exceeded 
their legal rights and authority. Bancroft v. Lynfield, 18 Pick. R., 566. 

A town cannot make a valid subscription in aid of a railroad, unless expressly 
authorized by law; but such a subscription, if authorized by law, and made in conformity there- 
to, is valid and binding on the town. Bushnell v. Beloit, 10 Wis. R.. 19o ; Town of Rochester v. 
Alfred Bk. etal., 13 Id., 432; Berliner v. Town of Watertown, 14 Id., 378; Veeder v. Town of Lima, 
19 Id., 280. 

See the foregoing cases as to the issuing of bonds and their validity in the hands of innocent 
holders and third parties. 



ART. IV.] CORPORATE POWERS OF TOWNS, ETC. 51 

1. To sue and be sued.(l) 

2. To acquire by purchase, gift or devise, and to hold property, 
both real and personal, for the use of its inhabitants, and again to 
sell and convey the same. (2) 



The constitution of Illinois declares that no township shall ever become subscriber 
•to the capital stock of any railroad or private corporation, or make donation to or loan its credit 
in aid of such corporation. Const., Art. on Mun. Sub. to R. R. or Priv. Corp. Since which, towns 
have no authority to subscribe for or donate to the capital stock of railroad companies. The 
People ex rel., etc., v. Brooks, 56 111. R, 142. 

As to origin and power of towns in Massachusetts, see note to case of Commonwealth v. Rozbury, 
% Gray (Mass.) R., 510, 511. 

A municipal corporation must show authority in terms or by necessary impli- 
cation for all the powers it attempts to exercise, and especially so when it claims the right, by 
taxing or otherwise, to divest individuals of their property without their consent. Where a new 
power is given and the means of executing it provided, those claiming the power can exercise it 
in no other manner. Mix v. Rose et al., 56 111. R., 121. 

It is the design of the law that municipal corporations shall exercise com- 
plete control over their local affairs. The legislature ordinarily has no power to impose a tebt 
or levy a tax upon a municipal corporation without its assent, or to authorize persons not corpor- 
ate officers to create a debt against the corporation, or to levy a tax therein, either directly or in- 
directly, without the consent of those to be affected thereby, or of the municipal authorities. Wilder 
■et al. v. City of East St. Louis, 55 111. R.. 133. 

(1) A township -was sued on the following instrument : " The commissioners of highways 
of the township of R. will pay the bearer twenty dollars when funds in road district number 
three and four " dated and signed by the commissioners. Held, that the action could not be sus- 
tained. The order was too indefinite in its terms. It should show expressly the person to whom 
payable, and on what account. Monroe v. Township of Rowland, 11 Mich. R., 318; Peoples. Town 
Board of Zelwaukie, 10 Mich. R., 271. 

A township is not liable for interest on damages appraised for laying out a highway. People v. 
Township Board of La Grange, 2 Mich. R., 187. 

A town, in its corporate capacity, cannot maintain an action to vindicate the tax payers from 
■an illegal tax. Guilford v. Supervisors Chenango Co., 3 Kern. R., 143. 

A town, organized under township organization in Illinois, is liable equally with natural per- 
sons in tresspass, for wrongfully taking the goods of another than the execution defendant. Wolf 
•v.Boetcher, 54 111. R., 316. 

Towns, under the township organization act, are not liable to a private action 
for damages occasioned by the neglect of the town authorities to keep their public highways in 
repair. The case of The Town of South Ottawa v. Foster, 20 111. R., 296, so far as it holds the latter 
description of towns liable to such private actions, is overruled. In respect to that character of 
liability there is no difference between the authorities of counties and their powers and duties 
in regard to public highways, and towns established by law as civil divisions of counties merely, 
and the doctrine of the case of Hedges v. Tlve County of Madison, 1 Gilm. R., 567, declaring that 
counties are not liable to such private actions, applies to towns of that description. The rule is 
otherwise in case of municipal corporations created for their own benefit, where more extensive 
powers and privileges are granted, as cities and villages. Town of Waltham v. Kemper, 55 111. R., 
346 ; Bushnell v. Town of Steuben, 57 111. R., 35. Nor can towns be subjected to such liability 
through an action against the commissioners of highways. Commissioners of Highways v. Martin, 
4 Mich. R., 557. 

In a later case the supreme court say that the maxim that no one has the right to use 
his property so as to injure another, applies as well to townships as to incorporated cities and 
natural persons. Teameu et al. v. Smith, 86 111. R., 391. 

(2) Towns may lawfully take toy purchase or devise, and hold real estate, other 
than such as may be necessary to erect school houses and other public buildings upon. Worces- 
ter v. Eaton. 13 Mass. R., 371. They may take the fee of lands, for the purpose of public commons, 
•and this by purchase. Beach v. Haynes, 12 Vt. R., 15. 

A town may gain title to lands toy possession as well as an individual. Booth v. 
Coventry, 4 Vt. R., 297. 

A town has no power to hold land not situated within Its own limits. N. Hemp- 
stead v. Hempstead, Hopk. Ch. R, 288, 2 Wend. R., 109 ; Riley v. City of Rochester, 9 N. Y. (5 Seld.) 
R., 64. 

Where a town owns a lot of land, and toy vote assents to a proposed exchange of 
it, the title to the land does not pass by the mere act of such vote. Atherton v. Johnson, 2 N. Hamp. 
R., 31. 

A town has no title to lands over which a highway passes; it remains in the 



52 TOWNSHIP ORGANIZATION ACT. [DIV. I, 

3. To make all such contracts as may be necessary in the exer- 
cise of the powers of the town.(l) [L. 1861, p. 218, § 1, 2. 

respective owner, subject to the right of way by the public. Such right of passage does not be- 
long to. nor is it in any sense the property of any particular town or county, but that of the 
whole State. Town of Galen v. Clyde, Etc., Plank Road Co., 27 Barb. R. 543. 

A sufficient and convenient room for elections and town meeting purposes is- 
a public use for which the town may purchase and hold a site, and erect a building, if there is 
none thereon, making all necessary contracts therefor. Such power includes the lesser power to 
lease a building for those purposes. Town of Beaver Dam v. Frings, 17 Wis. R., 398. 

A town may erect a town house of sufficient capacity for all the business which it may 
have occasion to do in such a building, and may, in its erection, make suitable provision for its 
prospective wants ; and if the building contains rooms not wanted for the time being for munic- 
ipal business, the town may let them temporily, or allow them to be used gratuitously. And the 
condition of a deed of land to the inhabitants of a town, which provides that the same " shall 
not be used for any other purpose than as a place for a town house for said inhabitants," is not 
broken by the erection thereof of a town house, with a hall in the second story which has oeen 
used for miscellaneous purposes, and rooms upon the sides of the entrance which have been 
let and used for shops and other purposes not connected with municipal business, and the con- 
struction and use for several years of a lock-up under the building. French v. Quincy, 3 Allen 
(Mass.) R., 9. 

(1) Where a contract is made in pursuance of a vote of a town, but before the con- 
tract is performed the vote is rescinded, it seems that the person with whom the contract is made 
is not affected by the rescission, unless he had notice thereof, in which case it would be otherwise. 
Allen v. Taunton, 19 Pick. R., 485. So a vote of a town authorizing payment for certain work 
done, if not acted upon by the party in whose favor the vote is taken, may be rescinded at the 
same or a subsequent meeting. Getchell v. Wells, 55 Maine R., 433 ; Rumford v. Wood, 13 Mass. 
R., 193, 199. 

Towns are not bound, even by the express vote of the electors thereof to the 
performance of contracts or other legal duties, not coming within the scope of the objects and 
purposes for which they exist. Parsons v. Goshen, 11 Pick. (Mass. R.), 396 ; Stetson y. Kempton, 13- 
Mass. R., 272 ; Norton v. Mansfield, 16 Mass. R., 48 ; Anthony v. Adams, 1 Mete. (.Mass. R.) 284. 

A town, as such, has no authority to contract with a plank road company,. 

or other corporation, granting them the use of a highway in the town ; as a corporation a town 
has nothing to do with, and no interest in the highways within its limits ; the title to the soil is 
in individuals; the right to their use belongs to the inhabitants of the town, not exclusively, but 
in common with the whole public. The care and superintendence of highways has been com- 
mitted to certain officers of the town chosen for that purpose, and whose duties are prescribed 
by law. See Town of Fishkill v. Fishkill & Beekman Plank Road Co., 22 Barb. R., 634. 

A town, in its corporate capacity, cannot maintain an action to set aside a 
contract entered into between the supervisor and commissioners of highways of the one part 
and a plank road company of the other, under which the company claims possession of a pub- 
lic highway in said town. Town of Galen v Clyde, Etc., Plank Road Co., 27 Barb. R.), 543. 

A town may take a bond, voluntarily given, to save the town harmless from the 
support of certain persons therein named; nor need it appear from the bond that they were at 
the time a charge on the town, it is sufficient that the declaration shows necessary expenditure 
for their support before action brought. Parolet v. Strong, 2 Vt. R., 442. 

In respect to the binding effect of contracts illegally made by the officers of 
municipal corporations, as organized townships, the rule is different from that in regard to 
private corporations organized for pecuniary gain. If such corporations, to increase their profits, 
embark in enterprises not authorized by their charter, still, as to third persons, and when neces- 
sary for the advancement of justice, the stockholders will be presumed to have assented, since 
it is in their power to restrain their officers when they transgress the limits of their chartered 
authority. But municipal corporations are not organized for gain, but for the purpose of gov- 
ernment, and debts illegally contracted by their officers cannot be made binding upon the tax- 
payers from the presumed assent of the latter. Bradley v. Ballard, 55 111. R., 413. 

Town officers are not deemed personally liable on contracts made in behalf of the 
town merely because they transcend their authority as such, if the other contracting party 
knows at the time that the contract is in excess of their authority. Leet v. Shedd, 42 Vt. R., 277. 

A town committee having charge of the repair of roads were held not personally 
liable for inadvertently pointing out to a road contractor an erroneous location of his section. 
Nicker son v. Dyer, 105 Mass. R., 320. 

Held, that where a town, through one of its selectmen, makes^ a contract and 
avails itself of the benefits thereof, it will not be allowed to repudiate any of its stipulations 
after the performance of the agreement by the other party by showing that the remainder of the 
selectmen were not cognizant of its terms. Earl v. Walllngford, 44 Vt. R., 367. 

The enumerated powers of towns includes that of erecting a suitable building 
or town house, so called, for holding town meetings ; for tne convenience of town officers, and 



ART. IY.] CORPORATE POWERS — TOWN MEETINGS. 53 



WHAT MAY BE DONE AT TOWN MEETING. 

40. Powers of town meeting.] § 3. The electors present at 
the annual town meeting shall have power — (1) 

1. To make all orders for the sale, conveyance, regulation or use 
■of its corporate property that may be deemed conducive to the 
interests of its inhabitants. 

2. To take all necessary measures and give directions for the 

•exercise of their corporate powers. 

3. To direct the raising of money by taxation for the following 
purposes :(2) 

for transacting all town business. The erection of such a building, selection of a site, as well as 
purchase of the land therefor, is under the control and direction of the electors at town meet- 
ing. They may accomplish this by a vote of the electors, or by the appointment of a committee 
with power to act. A very proper course would be to entrust the matter to the board of town 
Auditors. See Town of Beaver Dam v. Frings, 1/ Wis. R., 398; Kempioa v. Stetson, 13 Mass. R., 271. 

The necessity of building a town hall and the amount of expense for that purpose 
is a question which is left to the judgment of the people of the town, and the officers whom 
they mav elect. Courts will not interfere in this regard unless proper cause is shown. Greeley 
nt al. v. The People, 60 111. R„ 19. 

Powers of towns to erect town halls and buildings for rental discussed —see White v. Stanford, 
37 Conn. R.. 578. 

On the subject of building town house, see ante p. 52, note. 

A town may receive by endorsement a negotiable note for the purpose of meeting 
an expected claim upon the town by the payee, and may maintain a suit tnereon as indorsee, 
la the name of the town. This power may be exercised by the town agent or town authorities, 
without a vote of the town. Augusta v. Leadbetter, 16 Maine. R„ 45. 

(1) The powers of electors to bind the town are conferred by statute, and are 

limited to such acts as are prescribed by law. Cornell v. Guilford, 1 Denio R., 510. 

It is heldin Massachusetts that a town may indemnify its officers against a liability which they 
may incur in the bona fide discharge of their duties, although it turns out that they have ex- 
ceeded their legal rights and authority. Bancroft v. Lynfield, 18 Pick. R.. 566. 

A town meeting has no power to audit and allow accounts against the town. This 
;authority is conferred upon the board of Town Auditors. See post Art. XIII. People v. Onon- 
daga, 16 Mich R., 254. 

The electors at a town meeting cannot direct an officer of the town to perform any 
act which by law he has not authority to perform, nor to act in any other manner, in the per- 
formance of his duty, than that which is pointed out by law. Keen v. Stetson, 5 Pick. R., 492. 

An act of the legislature legalizing a -rote of a town renders such vote valid, al- 
though not confirmed bv the town. Potter v. Canaan, 37 Conn. R., 222; Stuartv. Warren, 37 Conn. 
R., 225. 

A liberal and favorable construction should prevail to support the proceedings of 
towns, especially when no one is thereby injured or deprived of any right. Kellar v. Savage, 5 
Shep. R.,444. 

(2) It is not necessary that towns in their votes raising money for the annual ex- 
penditures authorized by law should in all cases state a specific sum for each particular object. 
A. vote to raise a certain sum for the expenditures of the current year is a legal vote. Tucker v. 
Aiken, 7 N. Hamp. R., 113. 

When bonds are issued, -which are a town charge, to be paid by taxation, the elect- 
ors at a town meeting, have the legal authority to vote taxes in advance, to meet their prompt 
pavment, and how long in advance may oe safely left to be determined by a vote of the electors 
•of the town. Wright v. The People ex ret., 87 111., R. 582. 

"Where a town has voted a tax, but nothing has been done under the vote, the town 
lias the power, at a subsequent meeting legally held, to rescind, or reconsider, the vote; and 
having done so, the collector cannot legally proceed to collect the tax. Stoddard v. Gilman, 22 
*Vt.R.,568. 

Where a town having authority to vote a tax for one year votes it for three or more 
years, the tax voted will be valid for one year. People v. Allen, 43 111. R. F 461. 



54 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

First — For constructing or repairing roads, bridges or cause- 
ways within the town, to the extent allowed by law.(l) 

Second — For the prosecution or defense of suits by or against 
the town, or in which it is interested. (2) 

Third — For any other purpose required by law. (3) 

Fourth — For the purpose of building or repairing bridges or 
causeways in any other town in the same county or in another 
county : Provided, that notice is given by posting notices describ- 
ing the location of the bridge or causeway, and the probable 
amount required therefor, in at least three public places, at least 
ten days before the meeting in the town in which the taxes are 
proposed to be levied : And provided, also, that the tax, when col- 
lected, shall be paid only on the joint order of the commissioners 
of highways of the town in which the bridge or causeway to be 



(1) Concerning tax for roads and bridges. See post, Div. II, title " Roads and Bridges." 

(2) A town may vote a tax to defend a snit in which they are interested, whether 
directly for or against the town, or between third persons. Briggs v. Whipple, 6 Vt. R., 95. 

If a town officer in attempting to enforce an ordinance of the town, wrong- 
fully causes the imprisonment of the party charged with violating the ordinance, the town is not 
liable for such unauthorized act of the officer. President and Trustees of Odeli v. Schroeder et ux., 
58 111. R., 353. 

Held that a town cannot properly vote to pay money to its selectmen — who 

are a board of officers having charge of town affairs — for costs and damages sustained by them. 
in resisting criminal prosecutions brought against them for refusing to insert names upon a 
check list provided by the statute, and money thus voted cannot be collected. Merrill v. Plain- 
field, 45 N. Hamp. R., 126. And when selectmen have applied the money of the town to pay their 
expenses in defending against a criminal prosecution brought against them for alleged official 
misconduct in making up the check list, a subsequent vote of the town to ratify this application 
of the money will not be valid against a voter and tax payer of the town who has not assented 
to it. Gates v. Hancock, 45 N. Hamp. R., 528. 

(3) The term " purposes required "by law," must doubtless be understood aa 

including also those cases where an obligation on the town is necessarily implied; but in exercis- 
ing this power the electors will be held to legitimate purposes, where the town is immediately 
interested or directly benefitted. See People v. Works, 7 Wend. R., 486 ; Drake et al. v. Phillips et al. t 
40 111. R., 389. 

Held, in Massachusetts, that a town may appropriate money to indemnify a board of town offi- 
cers for expenses incurred in defending an action for an alleged libel, contained in a report made 
by them in good faith, in the line of their duty, and in which judgment has been rendered in 
their favor. Fuller v. Groton, 11 Gray (Mass.) R., 340. 

Where a town in its corporate capacity owns property exposed to damage by 
fire, they may appropriate corporate funds for its protection. Van Sicklen v. Burlington, 27 Vt. R., 70. 

A town cannot levy a tax to refund money voluntarily paid by individuals. 
Drake et al. v. Phillips et al., 40 111. R., 389. Nor can a town raise money to refund money given to 
the town without expectation of repayment Perkins v. MUford, 59 Maine R., 315. 

A town cannot legally raise money for the apprehension and conviction of per- 
sons charged with crime. Gale v. Inhabitants of South Berwick, 51 Maine R., 174. Nor can a town 
appropriate money for the celebration of the Fourth of July. Hood v. Lynn, 1 Allen R., 103 ; New 
London v. Brainard, 22 Conn. R., 552. 

Towns have no authority to raise money for building a theatre or any other 
place of mere amusement ; nor for the purpose of raising a statue or monument, unless in popu- 
lous and wealthy towns they thould be thought suitable ornaments to public buildings and the 
like. Stetson v. Kempton, 13 Mass. R., 272. 

Tbc electors at town meeting cannot vote a tax for improving lands or 

buildings not owned by the town; as to improve a town-house hired at the public expense^ 
People v. Works, 7 Wend. R., 486. 



ABT. IV.] COEPOEATE POWEES — TOWN MEETINGS. 55 

built or repaired is situated, and those of the town in which the 
taxis collected. (1) 

4. To provide for the institution, defense or disposition of suits 
at law or in equity, in all controversies between the town and 
any other town, or any individual or corporation, in which the 
town is interested. (2) 



(1) Where the law requires that notice shall he given of any special matter to be 
brought before a town meeting, in order to authorize action thereon, a vote taken upon such 
matter without notice being given is a nullity. Bracked v. W hidden, 3 N. Hamp. R., 17. But this 
rule does not apply to those current subjects which come before the annual town meeting as a 
matter of course pursuant to the general statutes. 

Where notiee of any special subject to he brought before a town meeting is 
required to be inserted in the notice of the meeting, the phraseology employed by the clerk 
will be liberally construed for the purposes intended. Bull v Warren, 36 Conn. E,., 83. 

In giving notice for levy of a tax for bridge purposes in another town, no defi- 
nite mode of proceeding being provided, it would seem proper to adopt the rule prescribed in 
other similar cases. A request may be made to the town clerk by any elector of the town to have 
the subject brought before the next annual town meeting; in which case the clerk may include 
the subject, as requested, in the notice of the town meeting, as in case of change of place of 
holding the town meeting. Pee Art. VI, § 5, post. p. 68. Or the notice for this purpose may be 
posted as a separate notice. The law does not prevent the town clerk from giving the notice 
even without a request; and when request is made, it may or may not be in writing. 

The following may he the form of the words to be inserted in the notice of the annual 
town meeting in the foregoing case: 

Notice is, also, hereby given that at said town meeting the following 
subject will be considered, to wit: The raising of money by taxation, for 
the purpose of building [or as the case may be] a bridge in the town of 

, across a stream known as [name of stream], at the place where the 

highway crosses said stream, leading from to . The probable 

amount required therefor is dollars. 

The act concerning roads and bridges provides that the treasurer of the com- 
missioners of highways shall receive and have charge of all moneys raised in the town for the 
support and maintenance of roads and bridges. See Div. II, post, " Roads and Bridges." § 11. to 
view of this it would seem that the money collected for tax levied for bridge and causeway pur- 
poses in another town should be paid over to the treasurer of the commissioners of highways of 
the town wherein the tax is levied, as in other cases. 

The joint order of the commissioners of highways may be in the following form : 

Form of Joint Order of Commissioners of Highways. 
County, 



Town of 

To the treasurer of the commissioners of highways of said town : 

Pay to , or order, the sum of dollars on account of funds in 

your hands from tax levied and collected for bridge and causeway purposes 

in the town of . 



Dated this day of 



A. B., ) Corn's of highways 
C. D., [ of 

E.F.J town of . 

G. H. s ) Corn's of highways 
I. J., [ of 
L.M.,J town of . 

(2) Prosecution and defense of suits. It is held in New Hampshire that towns have a 
qualified interest in the roadways and bridges they have erected, and may maintain an action on 
the case for the destruction or obstruction of the road, or the conversion of the material. Town 
of Troy v. Cheshire E. E. Co., 3 Foster E., 83. 

Held in Massachusetts that it is competent for the inhabitants of a town to take upon them- 
selves the expense of a suit against their agent or servant in which the interests of the town are 



56 TOWNSHIP OBGANIZATION ACT. [DIV. L 

5. To prevent the introduction, growing or dissemination of 
Canada thistles or noxious weeds, and to allow rewards for their 
destruction, and to raise money therefor. (1) 

6. To offer premiums and to take such action as shall induce the 
planting and cultivating of trees along the highways in such 
towns, and to protect and preserve trees standing along or on 
highways. 

7. To make rules and regulations for ascertaining the sufficiency 
of all fences in such town, and to determine what shall be a law- 
ful fence within the town, except as otherwise provided by law. (2) 

8. To restrain, regulate or prohibit the running at large of cat- 
tle, horses, mules, asses, swine, sheep or goats, and to determine 
the time and manner in which such animals may go at large, un- 
less the same are restrained from running at large in some manner 
provided by law. (3) 



directly involved. Where the servants of the town have made mistakes which have rendered 
them liable at law. that it is legal and proper for the town to meet the expense. Babbitt et al. v. 
Savoy, 3 Gush. R., 530. 

No sction lies against a town for an injury to persons or property occasioned by the suffering of 
a public highway to become out of repair, and in a ruinous and unsafe condition ; and the elec- 
tors at town meeting have no authority, and cannot, by a majority vote, bind the town by agree- 
ing to pay to the owner his damages he has sustained by such "injuries. The town could not 
be made liable for. their neglect without some express statute to that effect. In most of the New 
England States such a statute exists. See Morey v. Newfane, 8 Barb. R., 645 ; also 17 Johns. R., 452; 
Bushnell v. Town of Steuben, 57 111. R., 35 ; Bussell, Admr., v. Town of Steuben, 57 111. R., 35 ; Town of 
Waltham v. Kemper, 55 111. R., 346. 

(1) On the snhject of Canada thistles, see, also, post, subject " Canada Thistles." 

(2) Concerning fences, see, also, Div IV., title " Fences." post. 

(3) Concerning animals running at large, see, also, Div. X., title "Animals running 

at large," post. 

The rule of common law, which requires the owner of cattle, horses and other animal* 
to keep them on his own land, was formerly not in force in Illinois. Seeley v. Peters, 5 Gilm. R. 
130; Misner v. Lighthall, 13 111. R., 60S). But by the law above referred to, the rule of the common 
law has been changed in this regard, and such animals are not allowed to run at large, except 
where permitted by a vote of the people, in pursuance of the law. It will be seen, by reference 
to the law above referred to, post, p. 372, that where counties vote to allow domestic animals to 
run at large, the towns of the county may, nevertheless, by vote, restrain such animals from run- 
ning at large in the town so voting. 

A vote of a town to restrain cattle or other animals from going at large within 
the limits of the town, is binding upon persons not inhabitants, whose animals are found going 
at large. Gilmore v. Holt, 4 Pick. R., 258; Ames et al. v. Carlton, 41 111. R., 262. 

Any by-law of a town declaring that all hogs should be kept up, only extends to prevent hogs 
from going at large on the highway ; and it seems that a town has no power to prevent the inhab- 
itants from allowing their own hogs and other animals to go at large upon their own lands. Shep- 
ard v. Eees, 12 John. R., 433. But the owner of animals running at large would be liable to the 
damage they may do. 

Towns may malke Tby-laws or ordinances prohibiting cattle and other animals 
from running at large. The owner of animals running at large, contrary to such by-laws or ordi- 
nances, will be liable for trespass if his cattle go upon the land of others. A justice of the peace 
has jurisdiction in an action of trespass for damages in such cases. Thus, a suit was brought by 
A. against B. before a justice of the peace. The cause was taken to the Circuit Court by appeal, 
and tried upon the following agreed state of facts : " The plaintiff is a resident of the town of Ne- 
vada, and the defendant is a resident of the the town of Sunbury, lying adjoining in the same , 
county. The defendant's cattle were running at large in the town of Sunbury ; and, while so run- 
ning at large, crossed the town line into the town of Nevada, and did damage to the plaintiff 'a 
crops to the amount of five dollars. The plaintiff's crop was protected by no fence further than 



AET. IV.] CORPORATE POWERS — TOWN MEETINGS. 57 

9. To establish and maintain pounds at sucli places within the 
town as may be deemed necessary and convenient, and discon- 
tinue any pounds therein. When any pound is erected, it shall 
be under the care and direction of a pound master. (1) 

10. To determine the number of pound masters, to prescribe 
their duties, and to elect pound masters, either by ballot or in 
such other manner as they may determine, or provide for their 
appointment. 

11. To authorize the distraining, impounding and sale of cattle, 
liorses, mules, asses, swine, sheep or goats for penalties incurred 
and costs of the proceeding : Provided, that the sale of animals 
distrained or impounded shall be conducted, as near as may be, 
according to the law regulating sales of property by constables 
under execution : And, provided, also, the owner of such animals 
shall have the right to redeem the same from the purchaser 
thereof at any time within three months from the date of the 
sale, by paying the amount of the purchaser's bid, with reason- 
able costs i'or their keeping, and interest upon the amount bid at 
the rate of ten per cent, per annum. (2) 



required by the ordinance hereinafter set forth. The town of Nevada had adopted the following 
ordinance or by-laws : 

1. The outside edge of cultivated lands shall be a good and lawful close or fence for all pur- 
poses in law. 

2. No cattle, horses, mules, asses, hogs or sheep, shall be permitted to run at large in the town 
of Nevada, in the county of Livingston, and State of Illinois. 

The court found for the plaintiff, and the cause was taken to the Supreme Court, and judgment 
affirmed. The court say, Lawrence, Justice : 

The statute authorizes every town to prohibit the running at large of cattle, horses, etc. This 
town did so. Under the operation of this ordinance, cattle running at large were running in vio- 
lation of law, and their entiy upon the premises of a stranger was a trespass, as at common law. 
Justices have jurisdiction of the action of trespass to real estate, and would, therefore, have juris- 
diction of an action brought to recover damages for injuries done by cattle illegally at large. The 
special remedy given by the ordinance is simply cumulative, and could not oust the justice of a 
general jurisdiction given him by the statute. The only question for him to decide was, whether 
the defendant's cattle had illegally gone on the land of the plaintiff. If a trespass, the owner was 
liable for any damages done, and these damages could be recovered before any tribunal having 
jurisdiction of the parties and of the action of trespass. Judgment affirmed. Ames et al. v. Carl- 
ton, 41 111. R., 262. 

Where an act concerning animals running at large provided for taking up by a 
householder, and that the same should be delivered up to the owner on payment of fees and charges. 
Held, that a party seeking to justify such taking up must show that he is a householder (see Elinger 
v. Boneau, 51 111. R., 94), and that the owner, before he can maintain replevin, must show both a 
demand for the animals and an offer to pay the fees allowed for taking up, and charges for keep- 
ing the same, as prescribed by the act. Holcomb v. Davis, 56 111. R., 413. 

( 1 ) Location of pounds. It seems to be the policy of the law that pounds shall have a 
fixed and known locality. This is necessary, that all parties intere-ted may take notice of where 
to apply in case of animals impounded. If no public pound has been erected by the town, it 
would be proper to designate any particular enclosure named, as a pound for the time being. In 
<case neither course is adopted, it would no doubt be proper for the town bj its by-laws to au- 
thorize a person to impound animals in his private enclosure, by giving immediate personal 
notice to the owner. Anthony v. Anthony, 6 Allen (Mass.) R., 418. 

Trespass will lie where a pound, master allows impounded cattle to be driven away 
for pasture, or where there is unreasonable delay in complying with the law or regulations of 
the town. Cate v.Cate, 44 N. Hamp. R., 211; Harriman v. Fifield, 36 Vt. R., 341. 

(2) A person distraining cattle running at large, contrary to the regulations of the 
town, must drive them to the pound in a reasonable time, considering the circumstances. As to 



58 TOWNSHIP ORGANIZATION ACT. [DIV. I- 

12. To construct and keep in repair public wells or other 
watering places, and regulate the use thereof. 

what is a resonable time is a iact to be determined in the trial Mere delay in instituting pro- 
ceedings in the case, does not make him a wrong doer from the beginning. Drew v. Spaidding,. 
45 N. Hamp. R., 472. t 

A person at his father's on a visit, impounded cattle found upon his father's farm, with the 
apprcbation of his father, who sent a boy to help him: held, that the son's act in impounding: 
the cattle was, in legal effect, the act of his father. 

An impounder of cattle has a right to use the same force to maintain his possession 
of them that a sheriff has to protect his possession of property taken by him on legal process. A 
person who takes possession of cattle for the purpose of impounding them, does not, by after- 
wards abandoning his design, become a trespassers ab initio, as to become liable for force, which 
he used in defense of such possession before giving it up. Barrows v. Fassett, 36 Vt. R., 625. 
* Trover lies for an animal wrongly impounded ; and under the general issue the 
defendant may show that the animal was unlawfully at large. Drew v. Spaulding, 45 N. Hamp. 
R., 472. 

When a statute provided for the impounding of animals found "wandering, stray- 
ing or lving" about the road: it was held, that horses grazing on the side of a turnpike, under 
the control of a man in charge of them, were not liable to be impounded under this provision. 
Morris v. Jeffries, Law Rep., 12 B., 291. 

Where an ordinance of a town prohibiting certain animals from running at large 
provided that any person, being the owner of or having the care of any such animal, who should 
suffer the same to run at large, should be subject to a penalty specified ; in an action to recover 
the penalty for an alleged violation of the ordinance, the proof disclosed these facts : that the 
defendant lived on his farm outside of the limits of the town; that he had allowed the animals 
to run in a piece of woods near by, but that he watched and cared for them daily, and would 
have prevented them from straying into the town, on this the first instance, had he not been 
called away to the bedside of a dying brother. Held, that this evidence clearly exonerated the 
defendant from the charge of suffering his animals to run at large within the limits of the 
town; that to subject a person to the penalty under this ordinance, he must himself have par- 
ticipated in the act by suffering it to be done, which requires that he should have knowingly 
permitted his animals to run at large within the town, or have been guilty of such negligent 
conduct in enabling them to do so as would have been equivalent thereto. Toxun of Collinsville 
v. Scanland, 58 111. R., 221. 

An ordinance of a town for distraining stock from running at large, provided, among 
other things, that if the owner failed to reclaim them within a certain time, "and pay all costs 
of impounding and the damages which the stock may have done — the damages to be assessed 
by three disinterested men, citizens of the town," they should be sold to satisfy such costs and 
damages. Held, that the ordinance was unconstitutional and void : that the proceeding being 
one for damages, the owner was entitled to a trial by jury, the same as in any other case at law, 
and could not be deprived of such right. Bullock v. Geomble, 45 111. R., 218 ; Willis v. Segris, 
Id., 289. 

The law which gives to towns the power to restrain or prohibit the running at 
large of certain animals, and authorizes the distraining, impounding and sale of the same for 
penalties incurred, and the costs of the proceedings, does not give to towns the power to 
confer upon any of its officers authority to make sales for impounding animals, except upon 
the contingency that penalties have been incurred. A proceeding to ascertain whether a pen- 
alty has been incurred, is one purely judicial in its character, and involves a power which can- 
not be exercised by the pound master by virtue of his office; nor can a town, by its by-laws 
authorize him to sell property to satisfy a forfeiture for the violation of a law or ordinance,, 
without a judicial ascertainment that there has been such violation. And a sale of property by 
the pound master, without a judicial ascertainment being first had, will not divest the owner of 
his title. Poppen v. Holmes, 44 111. R., 360 ; Willis v. Segris, 45 111. R., 293 ; Cate v. Cate, 44N. Hamp.. 
R. 211. 

In the case of Poppen v. Holmes, 44 111. R., 360, the court say, Lawrence, J.: 

It will be observed that the power to make sales is given only for penalties incurred and the- 
costs of the proceedings, and a town cannot by its by-laws confer such authority upon its offi- 
cers in any other contingency. But to ascertain whether a penalty has been incurred or not, is- 
a proceeding purely judicial in its character, and that power cannot be exercised by the pound 
master by virtue ot his office. The by-law may impose a reasonable penalty for the offense of 
allowing animals to run at large, may authorize the animals to be impounded, and may direct 
an inquiry to be had before a magistrate as to whether the penalty has been incurred, with a 
right of trial by jury. If it has been incurred, the magistrate may be directed to enter judg- 
ment against the owner for the penalty and costs, and an order directing the pound master to 
sell the property. If the owner is known, he should receive personal notice, and if not known, 
there may be constructive notice to him, as the unknown owner of the impounded property, by 
posting, the property being described in the notices. A by-law thus framed would be free from 
objection; but one which authorizes the pound master to sell property without judicial ascer- 
tainment that some law has been violated, would confer upon the pound master a species of 



AET. IV.] CORPORATE POWERS — TOWN MEETINGS. 59' 

13. To prevent the deposit of night soil or other offensive sub- 
stances within the limits of the town. 

power never contempiated by the statute above quoted, to say nothing of constitutional objec- 
tions to its exercise. See, also, Willis v. Segris, 45 111. R., 289. 

In the absenae of any express provision of law prescribing the mode of pro- 
ceeding to establish the fact that a penalty has been incurred, the court, in the foregoing case, 
held that such mode of proceeding may be provided by the town by-laws, and the court points 
out particularly the provisions that maj be made. The following form of by-laws, and mode of 
proceeding concerning domestic animals running at large, are given as being in accordance- 
with the suggestions of the court in the foregoing case : 

Form of By-laws Concerning Cattle and Other Animals Running at Large. 

The town of , in the county of -, in the State of Illinois, by 

the electors thereof, duly assembled, do adopt the following by-laws : 

Section 1. No cattle, horses, mules, asses, swine, sheep or goats, shall 

hereafter be permitted to run at large in the town of — , and it shall be 

unlawful for any animals of the species aforesaid to run at large in said 
town. 

Sec. 2. Any person owning any animals of the species aforesaid, who 
shall suffer or allow the same to run at large in said town, shall incur and 
be liable to a penalty of dollars for each and every day he shall suf- 
fer or allow any of his said animals to so run at large. 

Sec. 3. Whenever any animals named in the first section hereof are 
hereafter found running at large, it shall be the duty of the pound master 
to cause them to be taken and placed in the public pound. And it shall 
be lawful for any person to take such animals to the pound, and cause 
them to be impounded. 

Sec. 4. Whenever any such animals are placed in the pound, it shall be 
the duty of the pound master to make complaint at once to some justice 
of the peace of the town, and apply for proceedings to adjudge against the 
owner the penalty incurred, stating the name of the owner, if known to- 
him, and the number and kind of animals. If the owner is not known, 
then giving a description of the animals. 

Sec. 5. The justice shall thereupon issue a notice in writing to the 
owner of said animals, stating the facts of impounding, and fixing therein 

a time not exceeding days thereafter, when said complaint will be 

heard, which notice shall be served at least days before the time of 

hearing the complaint. In case the owner is not known, then the notice 
shall describe the animals, and be posted by the pound master in five public 
places of the town, for days before the time fixed for such hearing. 

Sec. 6. It shall be the duty of the pound master to attend before the 
justice at the time fixed for the hearing as aforesaid, and present the facts 
in the case. The cause shall be tried by a jury, unless waived by the 
owner, and shall be conducted as other causes of like nature are conducted 
before justices of the peace. If the owner is found guilty, the justice shall 
enter judgment against him for the penalty as herein prescribed, and costs, 
and shall enter an order directing the pound master to sell the property to 
make the fine and costs. 

Sec. 7. Whenever animals are impounded, it shall be the duty of the 
pound master to supply them with proper food and drink during the time 
they remain. The value thereof, with services for feeding, to be shown on 
trial, shall be allowed as costs against the owner. 

Under the foregoing form of hy-laws the act of allowing any number of animals to 
run at large for one day constitutes one offense. Each day will be a separate offense ; for which 
separate action should be brought in prosecuting for penalties. 

The complaint to the justice, under the foregoing form of by-laws, need not be in writing. 
Such proceeding is not required to be in writing, unless when so expressly provided. 



60 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

14. To make all such by-laws, rules and regulations as may be 

deemed necessary to carry into effect the powers herein granted, 



Form of Notice by Justice to Owner of Animals Impounded. 
To A. B. : 

You are hereby notified that C. D., the pound master of the town of 

, has this day complained to me that on this day of , 

18 — , three cows, of which you are the owner, were found by him running 
at large in said town, at [slate the place where], contrary to the by-laws of 
the town, as he alleges, whereby you have incurred the penalty prescribed. 
That he did thereupon cause said cows to be impounded in the public 
pound of the town [if there are more than one pound, state which the ani- 
mals are in], where they now remain, and that said complaint will be 

heard before me at my office, in said town, on the day of , 18 — , 

at — o'clock — M. 

Witness my hand, this day of , A. D. 18 — . 

E. F. 
Justice of the Peace. 

The notice may toe served toy the pound master or any constable ; but in case the 
defendant does not appear, proof of the service should be made before the justice by the person 
serving the notice, as in case of any other fact. 

Form of Notice by Justice, Where Owner of Impounded Animals is not 

Known. 
To whom it may concern : 

The unknown owners of the animals, hereinafter described, are hereby 

notified that C. D., the pound master of the town of , has this day 

-complained to me that on day of , 18 — , three cows, one a brin- 

dle, and two of a deep red color, each about six years old, of which the 
owner is unknown, were found by him running at large in said town, at 
[state the place where], contrary to the by-laws of the town, as he alleges, 
whereby the owner has incurred the penalty prescribed. That he did 
thereupon cause said animals to be impounded in the public pound of said 
town [if there are several pounds, state which the animals are in], where 
they now remain, and that said complaint will be heard before me at my 
office, in said town, on the day of , 18 — , at — o'clock-, — M. 

Witness my hand this day of , 18 — . 

E. F., 
Justice of the Peace. 

Form of Docket Entry, on Hearing Complaint against Owner of Im- 
pounded Animals. 

^Gountyof 3 — } Before E * F *' Justice of the Peace * 

The Town of , ) 

vs. I Complaint of C. D., pound master. 

A. B. J 

18—, July 2, C. D., pound master, complains of A. B. for allowing three 
certain cows, of which said A. B. is the owner, to run at large, contrary to 

the by-laws of said town of , which animals he did this day cause to 

be impounded. Notice is issued to said A. B. that said complaint will be 
heard July 5, 18— , at — o'clock, — M. Notice returned served on said A. 
B. at date, by pound master. 

July 5, — o'clock, — E., pound master appears, and makes proof of due 
service of notice on defendant; said A. B. also appears; jury of twelve 
-men summoned, and sworn to try the matter in issue. The allegations of 



AET. IV.] CORPORATE POWERS — TOWN MEETINGS. 61 

and to impose such fines as shall be deemed proper, except when 
a fine or penalty is already allowed by law : Provided, no fine or 
penalty shall exceed $50 for one offense. (1) 

the parties, and proofs, are heard. The jury find that the complaint herein 

is true, and assess a fine against said A. B. of dollars. Judgment is 

therefore rendered against said A. B. for said sum of dollars for said 

fine, and the costs herein taxed, at dollars and cents. And it is 

ordered that the pound master proceed and sell said animals impounded 
as aforesaid, to make the ainount.of said fine and costs, in accordance with 
the statute in such cases made and provided, unless the same shall be paid 
before the sale. 

E. F., 
Justice of the Peace. 

Pound master's sale. The law regulating sales of property by constables under execution, 
provides that the constable "shall appoint a day and hour for the sale of said property, giving 
ten days' previous notice of such sale, by advertisement in writing to be posted up at three of the 
mo$| public places in the county; and on the day so appointed, the said constable shall sell the 
property so levied on, or so much thereof as may be necessary to pay the debt, interest and costs, 
to the highest bidder." Rev. Statutes, p. 650, g 88. See Haines' Treatise, new edition, p. 826 . The 
property should be sold by the pound master, in the town, at some convenient public place to be> 
set forth in the notice of sale. The following may be the form of the notice of sale : 

Form of Pound Master's Notice of Sale. 

POUND MASTER'S SALE. 

Notice is hereby given that the undersigned, pound master for the town 
of , in the county of , and State of Illinois, by virtue of au- 
thority in him vested, will on the day of , A. D. 18 — , at the 

hour of — o'clock — M., at [state place], in said town, offer for sale and 
sell to the highest bidder the following described animals, to-wit: [describe 
the animals particularly], said animals having been duly distrained and 

impounded for a fine of dollars, incurred in consequence of the same 

running at large in said town, contrary to the by-laws thereof. Said ani- 
mals will be sold as aforesaid, in satisfaction of said fine and costs of pro- 
ceedings. 

Dated this day of , A. D. 18— 

J. S., 

Pound Master. 

The pound master, in taking np animals and proceeding to sell them, must 
pursue the law and regulations of the town strictly, or the proceedings will be invalid, and the 
purchaser, at his sale, will acquire no title to the property. Bex v. Crook, 1 C owper R., 26; Clark 
v. Lewis, 35 111. R., 420. 

Under an ordinance of a town prohibiting the running at large of certain ani- 
mals, except at certain seasons of the year, and authorizing the impounding of the same, and 
their sale after giving notice, the pound master has no authority to act unless the animals are 
running at large, and at a time prohibited by the ordinance, and he will become a trespasser if 
he acts without authority. If he is sued for the property, he must prove that the animals were in 
that situation which the ordinance designated. The mere fact that he is an officer of the law is 
not sufficient; he must show that he acted lawfully. Nor can the purchaser, at a pound master's 
sale, establish his title against the former owner by mere proof of the sale; he must establish its 
validity by showing the authority, which cannot be presumed. Clark v. Lewis, 35 111. R., 418. 

Where the ordinance requires that not less than ten days' notice shall be given 
before a sale of an impounded animal shall be made ; this is an essential pre-requisite of such 
a sale, and can not be dispensed with by the officer. An abridgment of the time for the shortest 
period must avoid the sale. Nor can the sale be sustained where the pound master sells tKO ani- 
mals belonging to different owners, together at the same bidding. They should be sold separ- 
ately. Clark v. Lewis, 35 111. R., 418. 

(2) A by-law is a rule obligatory on a body of persons, or over a particular dis- 
trict, not being at variance with the general laws of the State, and being reasonable and adapted 
to the purposes of the corporation; and any rule or ordinance of a permanent character which a 
corporation is empowered to make, either by the common or statute law, is a by-law. It is a rule 



62 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

15. To apply all penalties, when collected, in such manner as 
may be deemed most to the interests of the town. [L. 1861, 
p. 221, § 5 ; p. 222, § 6 ; L. 1867, p. 173, § 3. 

41. Exception as to cities and villages.] § 4 In towns in 
which there are incorporated cities or villages, the boundaries of 
which are co-extensive with the limits of the town, or the town 
lies wholly within the limits of an incorporated city or village, 
the electors shall not exercise the several powers contained in 
sub-divisions of section 3 of this article, namely : 3, 5, 6, 7, 8, 9, 
10, 11, 12 and 13 ; but all moneys necessary to be raised in such 
towns for town expenses shall be ascertained by the county board, 
and the county clerk shall extend the amount so ascertained 
upon the collectors' books of such towns, and, when collected, 

« 

made prospectively and to be applied whenever the circumstances arise for which it is intended 
to provide. A by-law cannot impose an oath, unless empowered to do so, for that is contrary to 
•the common law. By-laws are binding upon all the inhabitants of the town ; and every stranger, 
though merely coming within the limits of the town, is bound, at his peril, to take notice of all its 
by-laws, provided it is said the object of the by-laws be to suppress a general inconvenience or de- 
feat fraud. Grant on Corporation, 76, 77. 

Any form of words is sufficient to constitute a by-law which signifies the will of 
the town that the by-law exist, and indicates the terms of it and the objects to which it shall 
•apply. Lisbon v. Clark, 18 N. Hamp. R., 234. 

Where a by-law or ordinance of a town simply declares what shall constitute a 
misdemeanor, without prescribing any penalty therefor, no recovery can be had for violation of 
such by-law or ordinance. Bowman et al. v. St. John, 43 111. R., 337. 

A by-law of a town which is in direct conflict with the laws of the state is void. 
Robinson v. Mayor, 1 Humph. (Tenn.) R., 156. 

In an action to recover a penalty for -violating a "by-law or ordinance of a town, 
it must appear affirmatively that the act complained of occurred after the by-law or ordinance 
took effect. It would be error to render judgment for the penalty without such proof. Debt is 
the proper form of action in such case. In bringing such action before a justice of the peace, 
which may be done where the amount does not exceed one hundred dollars, an affidavit or com- 
plaint in writing on which to base it is unnecessary. The action can be commenced in the same 
manner as an ordinary action of debt bel re a justice of the peace. The summons may be in 
the usual form for civil cases. A bond f , r costs, as in penal actions under the statute, is not 
necessary. Town of Jacksonville v. Black et al., 36 111. R., 507 ; Town of Lewiston v. Proctor, 23 111. 
R., 533. 

Ordinances of a municipal corporation are binding upon all the inhabitants 
therein, and have all the force and effect ol laws. Jones v. Fireman's Ins, Co., 2 Daly (N. Y.) R., 307. 

An ordinance which appears byt he records to have been passed, may be pre- 
sumed to have been passed by the full number of votes required, although the record does not 
-affirmatively show that fact. Lexington v. Headly, 5 Bush. (Ky.) R., 508. 

In a proceeding to recover a penalty for violating an ordinance of a municipal corpo- 
ration, proof is necessary of the existence of the ordinance. Stevens v. Chicago, 48 111. R., 498. 
To warrant a conviction for violation of an ordinance there must be proof that the act was com- 
mitted within the limits of the town. See Taylor v. Americus, 39 Ga. R., 59. 

A penalty incurred under the by-law of a town made to prohibit horses from 
going at large, etc., may be enforced after the expiration of the period it was intended to regulate. 
Stevens v. Dimond, 6 N. Hamp. R., 330. 

A person upon whom a line is imposed for violation of a town ordinance cannot 
be committed to prison, or held by the officer, upon the mere verbal order of the magistrate. 
President and Trustees of Odell v. Schroeder et ux., 58 111. R., 353. 

It is erroneous to issue execution on a judgment against a municipal corporation. Id. 

.Section 83 of the school law of 1873 did not repeal so much of the township or- 
ganization law as authorized towns organized thereunder to appropriate to their own use penal- 
ties recovered in suits prosecuted by such towns for violation of their town by-laws, and that the 
fines and penalties which it was designed to appropriate to the school fund, were such as would 
otherwise accrue to the people of the state for the violation of a public statute. Opinion Att'y 
•Gen. Edsall, March 23, 1873. 



AKT. IV.] COEPOEATE POWERS — TOWN MEETINGS. 63 

the same shall be paid over to the town supervisors the same as 
in other towns, and the powers and provisions of all cities and 
villages under their organic law shall not be repealed by any of 
the provisions of this article. 

NOTICE OF BY-LAWS, ETC., TAKING EFFECT. 

42. § 5. It shall be the duty of the town clerk to cause all by- 
laws, rules and regulations of the town, within twenty days after 
their adoption, to be published, by posting in three public places 
in the town; also by causing the same to be inserted once in a 
newspaper published in the town, if any there shall be ; but all such 
by-laws, rules and regulations shall take effect and be in force 
from the date of being adopted, unless otherwise directed by the 
electors of the town. [L. 1861, p. 222, § 7. 

EFFECT OF CERTAIN CONVEYANCES. 

43. § 6. Every conveyance or lease of land made to any person 
or persons in any manner, for the use and benefit of a town or its 
inhabitants, shall have the same effect as if made to the town by 
its corporate name. [L. 1861, p. 218, § 3.^ 

HOW CONVEYANCES MADE. 

44. § 7. When any conveyance of real estate is made by a 
town, the deed shall recite the order of town meeting directing the 
same (which recital shall be 'prima facie evidence of the making 
and contents of such order), and the deed shall be signed by the 
supervisor, in his official capacity, and attested by the clerk of the 
town, unless the meeting shall have ordered that the same be 
made by some other officers or persons. (1) 



(1) Form of Deed of Conveyance by Town, 

This indenture, made this day of , A. D. 18—, between the 

town of , in the county of , and State of Illinois, party of the 

first part, and G. D., of , party of the second part, witnesseth : 

That, whereas, at the annual town meeting of said town of , duly 

held on the day of , A. D., 18 — , at , in said town, an order 

was made by said town meeting in the words following, to-wit : 

Ordered that [set forth the words of the order. The deed should also 
recite a compliance with the conditions of the order.'] 

Now, therefore, the said party of the first part, in consideration of said 

sum of dollars duly paid, the receipt whereof is hereby acknowledged, 

has remised, released, sold, conveyed and confirmed, and by these pres- 
ents does remise, release, sell, convey and confirm uuto the said party of 

the second part, heirs and assigns forever, all the right, title, interest, 

-claim and demand which the said party of the first part has in and to the 



64 TOWNSHIP OKGANIZATION ACT. [DIV. I» 



AETICLE Y. 



LEGAL PROCEEDINGS IN PAYOR OF AND AGAINST A TOWN. 

Section. 

45. How conducted — Service. 

46. In what name suits brought. 

47. Who competent as witnesses and jurors. 

48. Jurisdiction of justices. 

49. Petition of town lands. 

50. Costs — Judgments against town. 

45. How conducted— Seryice.] § 1. Whenever any controversy 
or cause of action shall exist between any towns of this state, or 
between any town and an individual or corporation, such pro- 
ceedings may be had either at law or equity for the purpose of 
trying and finally settling such controversy, and may be conducted 
in the same manner, and the judgment or decree therein shall 
have the like effect as in other suits or proceedings of a similar 
kind between individuals and corporations. All process shall be 
served by leaving a copy of the writ or summons with the super- 
visor.^) [L. 1861, p. 234, § 1, 4. 

46. In what name juits brought.] § 2. In all such suits or 
proceedings, the town shall sue and be sued by its name, except 
where town officers shall be authorized by law to sue in their name 
of office for the benefit of the town.(2) [L. 1861, p. 234, § 2. 

following described lot, piece or parcel of land, situate in the county 
f — — j an d state of Illinois : [describe the premises] to have and to hold 
the same, together with all and singular the appurtenances and privileges 
thereunto belonging, or in anywise thereunto appertaining, and all the 
estate, right, title, interest and claim whatever, of the said party of the 
first part, either in law or equity, to the only proper use, benefit and 
behoof of the said party of the second part, heirs and assigns for- 
ever. 

In witness whereof, A. B., supervisor of said town of , has here- 
unto set his hand in behalf of said town, and affixed a scroll hereto in the 
place of a seal, and this indenture is attested by the town clerk, the day 
and year first above written. 

A. B., [SEAL.] 

Attest: E. F., Supervisor of the town of . 

Town Clerk. 
Such deed should be acknowledged as other deeds of conveyance. 

(1) Towns furnishing reasonable supplies to paupers belonging to other towns, 
may generally recover what they have bona fide paid. Southbridge v. Charlton, 15 Mass. E.., 248. 

An individual inhabitant of a town, being of course a party to a suit brought against 
the town, has the right to appear and defend such suit. Union v. Crawford, 19 Conn. R.., 331. 

The supervisor would seem to have authority to employ an attorney to conduct 
the defense of suits brought against the town, for whose services the town would be liable. 
Such was the construction of the law of 1861. Cooper et al. v. Delavan, 61 111. E.., 96. 

(2) Town officers, in bringing suits, should do so in their name of office, without the ad- 
dition of their individal names. Should town officers, such as commissioners of highways, sue 



AET. V.] LEGAL PROCEEDINGS. 65 

47. Who competent as witnesses and jurors.] § 3. On the 

trial of every action in which the town is a party or interested, the 
electors and inhabitants of such town shall be competent witnesses 
and jurors, except that in suits and proceedings by one town 
against another, no inhabitant of either town shall be a juror. 
[L. 1861, p. 234, § 5 ; p. 230, § 2. 

48. Jurisdiction of justices.] § 4. Any action in favor of a 
town, which, if brought by an individual, could be prosecuted be- 
fore a justice of the peace, may be prosecuted by the town in like 
manner before any such justice. (1) [L. 1861, p. 234, § 6. 

49. Partiti6n of town lands.] § 5. "Whenever by any decree 
or decision in any suit or proceeding brought to settle any con- 
troversy in relation to town commons, or other lands, the com- 
mon property of a town, or for the partition thereof, the right of 
any town shall be settled and confirmed, the court in which such 
proceedings shall be had may partition such lands according to 
the rights of the parties. [L. 1861, p. 235, § 8. 

50. Costs— Judgment against town.] § 6. In all suits or pro- 
ceedings prosecuted by or against town officers, in their name of 
office, costs shall be recovered as in like cases between individu- 
als. Judgments recovered against a town or against town offi- 
cers, in actions prosecuted by or against them, in their name of 

in their individual names as such town officers, and their term of office expires pending the pro- 
ceeding, the suit would abate, as these persons would no longer act in an official character, and 
hence could not further maintain the suit in that capacity. And it may be a serious question 
whether the suit could be revived in the names of their successors; and if it could, then the 
same difficulty would present itself in case their predecessors had acted willfully or maliciously, 
in rendering judgment, so as to hold them liable, as the successors could not be made person- 
ally responsible for the malice or neglect of their predecessors. A judgment against a person 
not then holding a town office would not bind the town. It against the successor of him who 
committed the wrong he could urge that he did not omit the duty. Highway Comrs. of Rut- 
land v. Highway Comrs. of Dayton, 60 111. R. , 58. 

The town super visor may defend a suit against a town, and prosecute an appeal, with- 
out a special authority from the town. Haner v. Polk, 6 Wis. R., 350. Town of Partridge v. Sny- 
der, 78 111. R., 519. 

A town may bring an action in its own name, on a contract made for its benefit with an au- 
thorized agent Garland r, Reynolds, 20 Maine R., 45. 

An agent of the town, to prosecute and defend suits only, has no authority to settle 
them ; and for any promise made by him in compromise he is personally liable if the party act 
on the faith thereof. Clay v. Wright, 44 Vt. R.. 538. 

The admissibility of the confessions of an agent to charge his principal, applies to 
the officers and agents of a town. Burlington v. Calais, 1 Vt R„ 471. 

If a suit is brought in the corporate name of the township, it is not necessary to allege 
in the declaration that the township has been incorporated. Morris v. Trustees of Schools, 15 111. 
R„ 266. 

(1) A town may appeal from the judgment of a justice of the peace. The appeal 
bond should be executed bv the supervisor of the town. Gardiner v. Town of Chambersburg, 19 
111. R., 99. Town of Partridge v. Snyder, 7s 111. R., 519. 

The bond in case of appeal by a town should be in the form prescribed by the statute. 
See Haines' Treatise, Title, "Appeal and Certiorari," commencing thus, "Know all men by 
these present, that we the town of (name of town) and {name of security)','" concluding thus, 

"Witness the hand and seal of A. B., supervisor of said town of , this day of , 

18—." The supervisor should sign his name to the bond, adding his title of office— supervisor — 
and affix his seal as in case of an individual. 



66 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

office, shall be a town charge, and when collected, shall be paid 
to the person or persons to whom the same shall have been ad- 
judged.(l) [L. 1861, p. 235, § 9. 

AETICLE VI. 

TOWN MEETING — JUDGES OP ELECTION. 

51. Time of town meeting. 

52. Notice. 

53. Election precinct. 

54. Place of meeting. 

65. Change of place of meeting. 

56. Ex-offlcio judges of election. 

SPECIAL TOWN MEETING. 

57. When called. 

58. .Notice. 

59. Form of notice — Restriction. 

60. Powers of special meeting. 

1. Filling vacancies. 

2. Raising money for highways, etc. 

3. Unfinished business. 

51. Time of holding meeting.] § 1. The annual town meeting, 
in the respective towns, for the election of town officers, and the 
transaction of the business of the town, shall be held on the first 
Tuesday of April in each year, at the place appointed for such 
meetings. (2) [L. 1861, p. 220, § 1. 

52. Notice.] § 2. Notice of the time and place of holding town 
meetings shall be given by the town clerk, or, in his absence, the 
supervisor, assessor or collector, by posting written or printed 
notices in three of the most public places in the town, at least 
ten days prior to the meeting, and if there is a newspaper pub- 
lished in the town, by at least one publication therein, prior to 
the meeting. (3) [L. 1861, p. 220, § 1. 

(1) When a town agent employs an attorney in a suit in favor of or against the town, 
the town is legally holden to pay the attorney's services, without an express vote to that effect; 
and the rule is the same, if the town agent being himself an attorney, renders professional servi- 
ces for the town. Langdon v. Castteton, 20 Vt. R., 285. 

(2) The constitution declares that "the day of holding the annual township meeting 
shall be uniform throughout the State." Const., Art. 10, \ 5. 

The township elections held in April are not general elections, within the mean- 
ing of I 5, Art. 10, of the Constitution. The People ex rel. v. Couchman, 15 111. E... 142. Opinion 
A»y. Gen. Edsall, Feb. 11, 1873. 

(3) Form of Notice for Annual Town Meeting. 

ANNUAL TOWN MEETING. 

The legal voters and electors of the town of , in the county of , 

and State of Illinois, are hereby notified that the annual town meeting 



ART. VI.] TOWN MEETING. 67 

53. Election precinct. § 3. Each town diall, for the purposes 
•of town meetings, constitue an election precinct. [L. 1861, p. 
265, § 1. 



for said town will be held at [state the place where], in said town, on Tues- 
day, liie day of April next, being the first Tuesday in said month, for 

the purposes following: 

1. To choose a moderator to preside at said meeting. 

2. To elect one supervisor, one town clerk, one assessor, one collector, one 
commissioner of highways, two constables, two justices of the peace, and 
«o many pound masters as the electors present may determine. 

3. To [add any further specific subjects upon which the meeting may be 
required to act that may be thought proper, and conclude by adding] and 
to act upon any additional subject which may, in pursuance of law, come 
before said meeting, at the proper time, when convened. 

Which meeting will be called to order between the hours of eight and 
nine o'clock in the forenoon. 

Given under my hand at *, this day of , A. D. 18—. 

J. M. T., Town Clerk. 

The foregoing form of notice is in accordance with that in use in the States of New Eng- 
land, corresponding to the requirements of their statutes. It contains more than the law requires, 
but this full specification of subjects, although not strictly required, is not objectionable. It 
affords a better understanding beforehand, and calls the attention of those concerned more im- 
mediately to the law, by which they are better prepared to act when the appointed time arrives. 
There are some instances where the law requires notice to be given oi subjects that will be 
brought before the town meeting, as the change of place of holding the annual town meeting, 
etc. It is also advisable to state the time, as fixed by law, for convening or calling the meeting to 
order. 

The following is a shorter form, which is suggested as being a substantial compliance with the 
law in giving notice of the annual town meeting, which may be used when desired: 

Another Form of Notice for Annual Town Meeting. 

ANNUAL TOWN MEETING. 

The legal voters and electors of the town of , in the county of , 

and State of Illinois, are hereby notified that the annual town meeting for 

said town will be held at [state the place where] , on the day of April, 

A. D. 18 — , being the first Tuesday in said month, for the purpose, among 
other things, of electing the following officers [here enumerate the town 
officers to be chosen], and for the transaction of all such other business as 
may, in pursuance of law, come before such meeting when convened; 
which meeting will be called to order between the hours of eight and nine 
o'clock in the forenoon. 

Given under my hand at , this day of March, A. D. 18—. 

F. D. B., Town Clerk. 

The time of calling the town meeting to order in the morning is prescribed by this 
act, Art. VII, § 2, but no hour for closing is specified. The consideration of miscellaneous busi- 
ness continues until concluded. See Art. VIII, § 7. This act provides, however, that the general 
laws of the State in regard to elections, etc., shall apply to all elections to be held under this act. 
Art. VII, I 8. This would seem to govern so far as the closing of the polls of the election at the 
town meeting is concerned. It is provided by the election law that the polls at elections shall 
continue open until seven o'clock in the afternoon. See post, " Elections," \ 48. 

Houses of public worship are, ordinarily, and prima Jade, to be regarded as public 
places for posting notices of the call of a town meeting for assessing taxes. Scammon v. Scammon, 
28 N. Hamp. (8 Fost.,) R., 419. 

All that the law requires is that notice of the time and place of the town meet- 
ing shall be given. The notice need not be addressed to any one. Baldwin v. North Bradford, 32 
'Conn. R., 47. 

The law requiring notice of the annual town meeting to foe given is directory. 
The law fixes the time, and the place is fixed by the electors, of which every one is bound to take 



68 TOWNSHIP ORGANIZATION ACT. [DIV. L 

54. Place of meeting.] §4. The place of holding elections 
shall be some convenient place in the town, to be fixed by the 
electors, at their annual town meetings. [L. 1861, p. 265, § 1. 

55- Change of place of meeting.] §5. Whenever it is desired 
to change the place of holding town meetings, and any twenty- 
five electors shall, before the time of giving notice of an annual 
town meeting, file with the town clerk a request in writing that a. 
change be made, designating the place to which the change 
is desired, a notice of such request shall be included in the 
notices of such meeting, and the electors may vote for or against 
such proposition. The ballots for the proposed change shall 
read: "For changing the place of holding town meetings to 
(name of place proposed);" those r ;ainst shall read: "Against 
changing the place of holding town meetings;" and if a majority 
of all the votes cast for and against such change shall be in favor 
of changing to the place designated, the place shall be so 
changed. (1) 

56. Ex-officio judges of elections.] § 6. The supervisor, asses- 
sor and collector of the town shall be ex-officio judges of all elec- 



notice ; therefore a failure to give the notice, as directed by the law, Will not invalidate the meet- 
ing. 6 Hill R., 646; 3 Denio R., 526. See Angell & Ames on Corp., § 488. People v. Peck, 11 Wend. 
R., 094. 

"Where the law requires notice of an election to he given, and the law itself does 
not fix the time and place of the same, but leaves that to be fixed in the notice of election, such 
notice given in substantial compliance with the law is essential to the validity of the election. 
Cooley on Const. Limitations, 602 and notes ; State v. Young, 4 Iowa R., 561. But when both the 
time and place of the election and the officers to be elected are prescribed by law, the validity of 
the election will be sustained, although the notice prescribed by law was not given. Ibid. See 
also, People v. Cowles, 13 New York R.; People v. Jones, 19 Iowa R.; People v. Hartwell, 12 Mich. R., 
508.; Opinion Atty. Genl. Edsall, March 11, 1878. 

At the first town meeting in new towns, three commissioners of highways are 
to be elected, whose term of office is to be decided by lot. See Art. 1, \ 16, ante, p. 38. 

In giving public notice, in the computation of time, the rule is, when an act is to 
be performed within a particular period, or on a particular day, from and after a certain day, to 
exclude the day named and include the day on which the act is to be done; or more concisely 
stated, it is to count one day in and the other out. Thus, in giving ten days' notice of an elec- 
tion or event to take place on the 10th of the month, the notice must be given or posted on the 
last day of the preceding month, in order to give ten days' notice. Ewing v. Bailey, 2 Scam. R.,. 
420; Hall v. Jones, 28 111. R M 55; Harper et al. v. Ely et al., 56 111. R„ 179. 

(1) Form of Bequest by Twenty-five Electors for Change of Place of Hold- 
ing Town Meetings. 

To the Town Clerk of the town of : 

The undersigned, twenty-five electors of said town of , do request 

that a change be made in the place of holding the town meetings of said 
town to [set forth the place to which the change is desired]. 

Dated this day of , 18 — . 

[ To be signed by 25 electors of the town.] 

Form of Notice of Bequest to be Included in the Notice of Town Meeting. 
To vote on the question of changing the place of holding town meetings 
to [set forth the place to which the change is desired, as in the request], a 
request for that purpose, by twenty-five electors, having been duly filed 
with the town clerk. 



AET. VI.] TOWN MEETINGS. 69 

tions in their town, except as other [wise] provided by law.(l) 
[L. 1861, p. 265, § 1. 

SPECIAL TOWN MEETINGS. 

57- When called.] § 7. Special town meetings shall be held, 
when the supervisor, town clerk and a justice of the peace, or any 
two of said officers, together with at least fifteen voters of the 
town, shall file in the office of the town clerk a statement, in 
writing, that a special meeting is necessary for the interests of 
the town, and setting forth the objects of the meeting. (2) ]L. 
1861, p. 222, § 8. 

58. Notice.] § 8. Notice of such special town meeting shall 
be given in the same manner and for the same length of time as 
other town meetings. (3) [L. 1861, p. 222, § 8. 

(1) See Post, " Elections," g 33. 

(2) Form of Statement to be Filed in the Office of Town Clerk for Special 

Toivn Meeting. 

The undersigned, town officers and fifteen voters of the town of 



in the county of , do state that a special town meeting is necessary 

for the interest of said town for the purpose of [here set forth the object of 
the meeting']. 

We would therefore request that immediate notice be given thereof, and 

that s uch meeting be held on the day of , A. D. 18 — . 

Witness our hands this day of , A. D. 18 — . 

L. B., Supervisor. 
S. W. M., Town Clerk. 
C S., Justice of the Peace. 
[Names of fifteen voters] of the Town. 

It is not necessary- that the statement for a special town meeting should be 
addressed to any person. The statute does not require it. Baldwin v. North Bradford, 32 Conn. 
R., 47. 

In the statement for a special town meeting it is only necessary to set forth the 
objects with such reasonable certainty as will notify all interested of the objects for which the 
meeting is called, and the time and place of meeting. Alger v. Carry, 40 Vt. R., 437. 

As to -who are voters of the town, and qualified to join in the statement for a speciai 
town meeting, is a question which the town clerk may determine. His decision that they are 
voters is conclusive for purposes of the town meeting. State v. Town of Lime, 23 Minn. R., 522. 

To render a special town meeting legal, it should appear that a statement, as re- 
quired by law, that the meeting was necessary, was filed in the office of the town clerk. The 
record of a special town meeting, reciting the filing of the proper statement, would be sufficient 
prima facie to show such fact. Brown v. Witham, 51 Maine R., 29; Lemington v. Blodgeti, 37 I1L 
R., 210. 

(3) Form of Notice for Holding Special Town Meeting. 

SPECIAL TOWN MEETING. 

Whereas, the supervisor, town clerk and a justice of the peace [or as the 

case may be], together with fifteen voters of the town of , have, in 

writing, filed in my office a statement that a special town meeting is neces- 
sary for the interest of said town, setting forth the object of the meeting. 

The legal voters and electors of the said town of are therefore 

hereby notified that a special town meeting will be held at , on the 



70 TOWNSHIP OBGANIZATION ACT. [DIV. I. 

59. Form of notice — Restriction.] § 9. The notice shall set 
forth the object of the meeting, as contained in the statement filed 
with the town clerk, and no business shall be done at a special 
meeting except such as is embraced in such statement and notice^ 
[L. 1861, p. 222, § 8 ; p. 223, § 9. 

60. Powers of special meeting.] § 10. The electors at special 
town meetings, when convened, shall have power :(1) 

1. To fill vacancies in the offices of town officers, when the same 
shall not have already been filled by appointment. 

day of , A. D. 18—, to commence between the hours of 8 and 9' 

o'clock in the forenoon, for the purposes following, to-wit: 

To [here enumerate specifically , in proper order, the subjects to be acted 
upon as contained in the statement filed~\. 

Being the objects contained in the said statement filed in my office. 

Given under my hand at , this day of , A. D. 18—. 

S. W. M., Town Cierk. 

The town, clerk, in. giving notice of a special town meeting, performs a mere^ 
ministeral duty, and the electors cannot be limited in their action at the meeting by the phrase- 
ology of the notice, provided the statement of the objects for which the meeting is called is sub- 
stantially correct. Ball v. Warren, 36 Conn. R., 83. 

The presumption is, that the number of notices required by law have been duly 
posted. State v. Town of Lime, 23 Minn. R., 521. 

It is no objection to the legality of a town meeting, that the notices therefor were- 
not posted in the places where such notices had usually been posted in the town, it not appear- 
ing but that they were posted in public places, as required by the statute. Stoddard v. Gilman, 22: 
Vt. R., 568. 

(1) Special town meetings have no jurisdiction to act upon any subject not specially 
conferred upon such meetings by law. The powers conferred upon the electors at the annual 
town meeting cannot be extended by implication to special town meetings. People v. Works, 7 
Wend. R., 486. By the statute of New York, special town meetings have power to supply vacan- 
cies in certain cases ; to raise moneys for the support of common schools, or the poor, when 
those subjects were not acted upon at the annual town meeting; and to deliberate in regard to" 
suits for or against the town, and to raise moneys therefor. And it is decided that they have no- 
other power. See same case, before cited. This decision will apply to the statute of Illinois. It 
will be observed, however, that special town meetings have authority to act upon any subject 
within the powers of the electors at the annual town meeting where the subject was postponed 
for the consideration of a special meeting. When it is desired to postpone the consideration of 
any subject to a subsequent special town meeting, the proposition should be reduced to writing 
in the form of a resolution or order, and being adopted by the meeting, should be recorded by 
the clerk upon the minutes of the proceedings of the meeting, that in case of controversy it may 
be shown with certainty what subjects were postponed or laid over. Such resolution may be in. 
the following form : 

Form of Resolution Postponing Subject for Special Town Meeting. 
Resolved, That the subject of [state the subject briefly'] being under con- 
sideration at this the annual town meeting, 18 — , for the town of , 

and there not being time to consider the same, it is postponed, to be con- 
sidered at a future special town meeting that may be called for that purpose. 

A town meeting specially called to vote a tax for a given purpose is not au<- 
thorized to act upon any subject beyond a vote upon such tax. Atwood y. Lincoln, 44 Vt. R., 332. 

Special town meetings may he held to vote on the question of borrowing money to- 
build bridges. See Div. II, ''Roads and Bridges," g 111 post. 

Special town meetings may he called to fill vacancies in town offices, where 
the same have not been filled by appointment ; but if the vacancy has been filled by appoint- 
ment, it cannot be filled by special election. Township Organization Laws, Art. JV, § 9; Opinion 
Attorney General Edsall, May 23, 1873, citing People v. Van Houxe, 18 Wend. R.. 515. 

The inhabitants of a town cannot, avoid heing bound by their vote, at a meeting: 
legally called, by proof that the vote was passed near the close of the meeting, and after a por- 
tion of the voters had retired. Bean v. Jay, 23 Maine R., 117. 



AKT. VII.] MODE OF C0NDUCTI1T3 ELECTIONS. 71 

2. To provide for raising money for repairing highways, or 

building or repairing bridges, in cases of emergency, and to direct 
the building and repairing thereof. 

3. To act upon any subject within the powers of the electors at 

any annual town meeting, which may have been postponed for 
want of time at the preceding annual town meeting, to be con- 
sidered at a future town meeting. [L. 1861, p. 223, § 9. 

ARTICLE VII. 

TOWN OFFICEKS ELECTED BY BALLOT — MODE OF CONDUCTING ELECTIONS 
FOR TOWN OFFICERS. 

Section. 

61. Election of officers. 

62. Organizing town meeting— Moderator. 

63. Powers of moderator. 

64. Oath of office of moderator. 

65. Clerk— Minutes. 

66. Clerk pro tern. 

67. Ballot boxes — Polling places — Canvass. 

68. General election laws to apply. 

69. Recess. 

• 70. Result of election. 

71. Tie vote. 

72. Persons elected notified. 

73. List of town officers filed with county clerk. 

61. Election of officers.] § 1. At the annual town meeting in 
each town there shall be elected by ballot one supervisor, (who 
shall be, ex-qfficio, overseer of the poor,) one town clerk, one asses- 
sor and one collector, who shall severally hold their offices for one 
year, and until their successors are elected and qualified, and such 
justices of the peace, constables and highway commissioners as 
are provided by law : Provided, that in any town, or any city not 
included within the limits of any town (except in Cook county), 
having four thousand inhabitants, there shall be elected one addi- 
tional supervisor, to be styled assistant supervisor ; in towns hav- 
ing six thousand five hundred inhabitants, there shall be elected 
two assistant supervisors, and so, for every additional twenty-five 
hundred inhabitants, there shall be elected one additional super- 
visor — the population of towns to be ascertained by the last fed- 
eral or State census preceding the election.(l) Provided, that 

(1) The language of the above proviso, in regard to any city not included within 
the limits of any town, has reference to such cities as are not included in any organized town, 
and as are named in section 20 of Art. I (see ante p. 39) of same act, and constitute separate 
towns by the name of such cities respectively. Allen v. The People ex rel., 84 111. R., 502. 

Where a eity is organized "by statute, within but not coextensive with a township, in 
general it remains a part of the township. If a statute provides for assessors and supervisors of 



72 TOWNSHIP OKGANIZATION ACT. [dIV. I. 

nothing in this act shall be so construed as to diminish the repre- 
sentation that any city or town may now be entitled to by law. 
But in case such city or town is now entitled to a greater repre- 
sentation than is given by this section, it shall be entitled to no ad- 
ditional representation under this section ; and the members of the 
board of supervisors from such city or town now provided for by 
law shall continue to be elected as now required by law.(l) And, 
provided, further, that whenever the representation of any city or 
town is or shall become less than is given by this section, no in- 
creased representation under any special act shall be had by such 
city or town, but its representation shall be as provided for in this 
section.(2) See Eev. Stat., "Justices and Constables," ch. 79, § L 

Trustees of schools.] In counties adopting township organiza- 
tion, in each and every township whose boundaries coincide and 
are identical with those of the town, as established under the town- 
ship organization laws, the trustee or trustees [of schools] shall be 
elected at the same time and in the same manner as the town offi- 
cers ; and all elections heretofore held at such time and in such 
manner in such townships are hereby legalized, and in all such 



highways over a city which forms part of a township, the similar officers of the township have 
no authority within the city. State v. Ward, 17 Ohio St. R., 543. 

(1) "Where the representation of any town in the county board was less under 
any special act than the representation provided by the law of 1S74, the special act is by that 
law expressly superceded and made to cease to operate, and it matters not that the exclusive 
representation of a city which is a part of a town, is less by the act of 1874 than under the special 
act, or be taken away entirely, so that that of the town in which the city is situated be increased. 
ARen v. The People ex rel., 84 111. R., 502. 

(2) The number of commissioners of highways of a town is three. The term of 
office is three years. At the first town meeting three commissioners are elected, and the term of 
office of each is agreed upon by lot, so that one expires every year, and thereby there is one 
commissioner to be elected at every annual town meeting. See ante p. 38, Art. I, § 16. 

If a town fails or neglects to elect the number of justices or constables to which 
it Avould be entitled under the law, and should elect a less number, having had a full number 
for the preceding term, this would oust all those of the previous term ; neither could hold over 
on the ground that no one had been elected in his place. People v. Jones, 17 Wend. R., 81. 

Whether a person can hold more than one town office at the same time is a ques- 
tion frequently raised. In the absence of any express prohibition by the statute, one person 
could hold such offices at the same time as are not incompatible with each other. At common 
law the only, offices incompatible with each other were such as were subordinate and interfering, 
as where one was judicial, and the other ministerial, and the latter was directly subordinate to 
the former. Citing Bouv. Law Diet., 4 Sergt & Rawle ; Opin. Att'y Gen'l Cole (Minn.), Vol. 1, 
p. 260. 

The acceptance of a second office incompatible with the first) vacates the first 
office. People v. Carrique, 2 Hill. R., 93. 

Although a majority of the electors of a town may not attend and vote at a 
town meeting, yet persons receiving a majority of the votes of those that attend, for offices, will 
be legally elected. Opin. Att'y Gen'l Cole (Minn.), vol. 1, p. 296. And although a town meeting 
may be invalid by reason of irregularity, yet the town officers elected at such meeting are offi- 
cers de facto, and as such their acts are binding on the town. Gushing v. Frankfort, 57 Maine 
R. 541. 

The constitution declares that the General Assembly shall not pass local or special laws 
in the following cases : 

"Regulating county and township affairs. 

" Providing for the election of members of the board of supervisors in townships, incorporated 
towns and cities." Const., Art. 3, Sec. 22. 



AET. VII.] MODE OF CONDUCTING ELECTIONS. 73 

townships, if no trustees are elected at the stated town meeting, 
and when vacancies occur in the board, an election of trustee or 
trustees shall be ordered by the trustees of schools, through the 
township treasurer, as provided in the twenty-fifth section of this 
act. [School Act, Kev. Stat. 953, § 27. 

Commissioner of highways.] In counties under township or- 
ganization there shall be elected in each town, at the annual town 
meeting each year, one commissioner of highways, who shall hold 
his office three years, and until his successor is elected and quali- 
fied. [L. 1875, p. Ill, § 1. 

62. Organizing town meeting — Moderator.] § 2. The electors 
present, at any time between the hours of eight and nine o'clock 
in the forenoon of the day on which there is an annual or special 
town meeting, shall be called to order by the town clerk, if there 
be one ; in case there be none, or he is not present, then the voters 
may elect, by acclamation, one of their number chairman. They 
shall then proceed to choose one of their number to preside as 
moderator of such town meeting.(l) [L. 1861, p. 223, § 1. 

63. Powers of moderator.] § 3. The moderator so chosen 
shall have the same power and be subjected to the same penalties 
as other judges of election. 

64. Oath of moderator.] § 4. Before the moderator of any 
town meeting shall enter upon the duties of his office, he shall 
take an oath faithfully and impartially to discharge the duties of 



(1) The provision requiring the town meeting to be called to order between 
eight and nine o'clock in the forenoon, would seem to be directory. Should there be a failure to 
call the town meeting to order within the time specified by law, it could no doubt be properly 
called to order at any time during the day, where all parties act in good faith. See Gooddell v. 
Baker, 8 Cowen R., 286. 

In organizing a town meeting the town cleric takes the chair as temporary 
moderator, or chairman of the meeting for the time being, and conducts the proceeding of choos- 
ing the moderator for the meeting. In case the town clerk is absent, then some elector present 
is chosen to act in such temporary capacity, whereupon the electors proceed to choose a moder- 
ator. 

A town meeting, when properly convened at the place appointed at the last 
annual town meeting, may no doubt, by a majority vote of the electors present, adjourn, if 
found necessary for convenience, to another place, where the meeting may proceed with the busi- 
ness of the day. If the place adjourned to is at any considerable distance, so as to render it ma- 
terial, the vote of adjournment should not be taken before the hour of ten o'clock in the fore- 
noon at least ; sufficient time ought to be afforded for a full expression of the electors, and in 
towns where meetings have not usually convened until a later hour, then such vote should not 
be taken until the arrival of the usual hour of meeting. Gould v. Baker, 8 Cowen R., 286. But there 
seems to be no authority, express or implied, for adjourning the meeting to another day. 

Where a town meeting was called to he held at a school house, and the clerk, 

with four or five others, assembled in the street opposite the school house one-half hour after 
time appointed, and without choosing a moderator adjourned to a store a mile distant, on the 
"borders of the town, leaving no notice of such adjournment at the school house, where not 
more than fourteen of two hundred and sixty voters attended, and others came to the school 
house, and finding no indication of a meeting, went home : it was held that the act of the meet- 
ing at the store was not binding on the town. That a town meeting called to be held in a build- 
ing named, must be understood to mean within the walls of the building. That to be legal, the 
town meeting must be originally held at the time and place appointed. It was further held 
in this case that a town meeting legally organized has the incidental power of adjourning to a 
future time, and perhaps to meet in a different place, provided it be appropriate. Chamberlain v. 
Dover, 1 Shep 'JSIahie) R., 466. 



74 TOWNSHIP ORGANIZATION ACT. [DIV. 1^ 

such office — which oath may be administered by the town clerk,, 
or other proper officer.(l) [L. 1861, p. 223, § 2. 

65. Clerk — Minutes.] § 5. The town clerk last before elected 
or appointed, shall be the clerk of the town meeting, and shall 
keep faithful minutes of its proceedings, in which he shall enter, 
at length, every order or direction, and all rules and regulations 
made by such meeting. [L. 1861, p. 223, § 3. 

66. Clerk pro tern.] § 6. If the town clerk be absent, then 
such person as shall be chosen* for that purpose by the electors 
present, shall act as clerk of the meeting. [L. 1861, p. 224, § 4 

67. Ballot boxes— Polling places— Canvass.] § 7. The town 
shall supply a suitable ballot-box or boxes to be kept and used 
in like manner as ballot-boxes in other elections. In incorpor- 
ated towns, or incorporated villages, whose limits are co-extensive 
with the limits of a town ; or in any organized town where the num- 
ber of voters at the last preceding general election exceeded three 
hundred, the county board may require one or more, additional 
ballot-boxes and places for the reception of votes to be provided, 
which places shall be selected with reference to the convenience 
of the electors of the town, and shall designate at which of said 
polling places the town clerk shall act as clerk of the election;, 
and such polling place, when so designated, shall be the place for 
transacting' the miscellaneous business of the town. And when 
several places are so provided, the electors present shall choose 
from their number one assistant moderator and one assistant 
clerk, for each addition ballot-box, to receive the votes therein,, 
who shall take the same oath and be subject to the same penal- 
ties as the moderator and clerk, and shall be under the direction 
of the moderator. At the closing of the polls all the said ballot- 
boxes shall be brought together at the polling place where the- 

(1) Form of Oath of Moderator of Town Meeting. 
I do solemnly swear [or affirm, as the case may 6e,] that I will support 
the Constitution of the United States, and the Constitution of the State of 
Illinois, and that I will faithfully and impartially discharge the duties of 
the office of moderator at this town meeting, according to the best or my 
ability. 

The foregoing form of oath of moderator comprises the form prescribed by the Con- 
stitution for official oaths in all cases, with the addition of the words "and impartially," as re- 
quired by the above section. If the position of moderator is an office, these words are unneces- 
sary. See Const., Art. 5, Sec. 25. 

The clerk should make a record upon the minutes of the meeting of the fact that the modera- 
tor was duly sworn before entering upon the duties of his office. 

Where, in pursuance of law, an oath of office is administered in open town 
meeting, in presence of the town clerk, the clerk's record of the fact is competent evidence of 
the administration of the oath. Briggs v. Murdoch, 13 Pick. R., 305. 

The neglect of the moderator or cleric to take the oath as prescribed, would not, 
it seems, vitiate the election of officers at town meeting. An oath irregularly administered, for 
example, upon a book other than the Holy Bible, the parties administering it, and taking it, sup- 
posing it a Bible, is a valid oath People v. Cook, 4 Seld. R., 67. 



AKT. YEI.] MODE OF CONDUCTING ELECTIONS. 75' 

town clerk acts as clerk of the election, and the votes shall be 
canvassed at the same time and in the same manner, and return 
thereof made the same as if all the votes had been cast in the 
same ballot-box. When there shall be more than one polling 
place designated in such towns, the general meeting for the trans- 
action of business shall be held at the time hereafter mentioned 
it the polling place where the town clerk acts as clerk of the 
town election; or, if there be no town clerk, then at such place 
as shall be designated by the county clerk. And it shall be the 
duty of the town clerk, or if there be no town clerk, it shall be 
the duty of the county clerk to post up in three of the most pub- 
lic places in the town, a notice of each of the places in the town 
where the county board have directed and required the election 
to be held : Provided, hoivever, That in towns which lie wholly 
within the limits of an incorporated city, the common council of 
such city shall divide each of such towns into election precincts, 
and designate the voting places in each precinct; and any elector 
in such towns shall be entitled to vote for town officers only in 
the precinct in which he may reside. The common council of 
such city shall also appoint three judges of election for each of 
such precincts, who may be the same persons as are appointed 
as judges for an election for city officers held on the same day. 
Such judges of election may choose two clerks of election for 
each precinct, and such judges and clerks shall take the oath of 
office now prescribed by the general election law of the State. 

The ballots cast at such election for town officers. shall be de- 
posited in a separate ballot-box, and shall be counted and can- 
vassed by the judges of election separately from any other bal- 
lots that may be cast at any other election that may be held on 
the same day. Said judges of election shall cause to be kept a 
separate poll list which shall contain the names of all persons 
voting at such election for town officers, together with their resi- 
dence. And immediately upon closing the polls they shall can- 
vass the votes polled in the manner provided by the general 
election law of the State, and make a written statement or certi- 
ficate of the number of votes cast at such election for each per- 
son voted for, and the office for which such person received such 
votes, and shall, within forty-eight hours thereafter, cause such 
certificate and the poll list, together with the ballots cast at such 
election, to be separately sealed up and transmitted to the clerk 
of the town. The supervisor, together with the assessor and 
collector, shall, within five days thereafter, meet and canvass said 
returns and declare the result of said election. The town meet- 
ings to be held in such towns for the transaction of town business, 
as now provided by law, shall be held at two o'clock in the after- 
noon of said day at such voting place in such town as the common 



76 TOWNSHIP .ORGANIZATION ACT. [DIY. I. 

council of such city may designate, at which meeting a moderator 
shall be chosen to preside by the electors present, and the town 
clerk shall act as clerk of said meeting, and shall keep a record 
of the proceedings thereof." [As amended, Laws 1877, p. 213.(1) 
68. General election laws to apply.] § 8. The general laws of 
the State in regard to elections and qualifications of voters shall 
apply to all elections to be held under this act, so far as the 
same may be applicable, except as herein otherwise provided : 
Provided, that no registration of voters shall be required. (2) 

(1) The county board in designating separate places for receiving votes at a town 
election, cannot meet and have a verbal understanding where the places shall be. In the case 
of a city council exercising like authority, it was held that the council should take such formal 
action before the election that citizens could know from its records where the election was to be 
held, and that this must be done a sufficient length of time in advance to enable the town clerk 
to give notice oi the election. The People v. Gouchenour, 54 111. R , 123. 

(2) The general law in regard to elections and qualification of voters is to be ob- 
served, with limited exceptions, in conducting all elections under this act. This is required by 
the above section, and it is to some extent a new principle in the township organization system 
in this State. As the law formerly existed, the election of town officers was a matter incident to 
■a town meeting, and was under the control of the electors. But by the terms of this act the 
election of town officers is regarded as a separate proceeding, to be conducted in the manner of 
general elections. This act provides that the supervisor, assessor and collector of the town shall 
be judges of all elections in their town, except as otherwise provided by law. See ante. p. 68 Art. 
VI., §6. There is no provision ol law regulating elections in this regard in towns, whether 
for town officers or otherwise, except the general election law. It seems to be the intention of 
this act, as drawn from its various provisions, that the election of such town officers as is required 
by law to be by ballot shall be conducted under the charge of the regular judges of election of the 
town, in connection with the moderator of the town meeting; it being provided that the mod- 
erator shall have the same power as other judges of election. See ante, p. 73, Art. VII., § 3. See 
post, " Elections.'" 

It is further provided by this act (ante, p. 37, Art. I, § 12), that the county board shall appoint 
three electors of the town to be judges of election at the first town election (meaning the election 
at the first town meeting) in said town. If, therefore, it is considered necessary to have judges 
of election at the first town meeting, these officers are equally as important at all subsequent 
town meetings at which elections are held. This being the intention of the law, the moderator 
and the three regular judges of election of the town will form a board of judges of election, and 
take charge of the ballot-box, and conduct the election of town officers and canvass the ballots 
the same as at any other election under tne general election law of the State. For duties of 
judges of election, qualification of voters, canvassing votes and manner of conducting the 
election of town officers, see the general election law, post, " Elections." 

"When one moves into a town, or, being a resident in a town, arrives at full age he 
at once becomes a member of the corporate body, without any other act, and without his con- 
sent. Lord v. Chamberlain, 2 Maine R., (2 Greenl.), 69; Richmond v. VassaJborough, 5 Maine R., 
.(5 Greenl.). 342. 

Form of Poll List kept at Town Meeting. 

Poll list kept by the clerk at the election at the town meeting held 

at , in the town of , and county of , on the day 

-of , A. D. 18—, on which is entered the name of each person voting 



at said election. 






Number. 


Names of Voters. 


Number. 


Names of Voters. 


1 
2 


J. H. 
E. H. 


3 
4 


S. C. 
J. w. 



Total number of ballots, 4. 

J. J., Moderator. 
A. B,) 

C. D., ^Judges of FJe<*\<™. 
Attest : J. S., Town Clerk. E. F., J 



AET. YII.] MODE OF CONDUCTING ELECTIONS. 7? 

69. Recess.] § 9. A recess may be taken during the time 
necessary for the transaction of the business of the town other 
than the election of officers by ballot.(l) 

70. Result of elections.] § 10. The canvass being completed, 
a statement of the result shall be entered at length by the clerk 
of the meeting in the minutes of the proceedings, to be kept by 
him as before required, which shall be publicly read by him to 
the meeting ; and such reading shall be deemed notice of the re- 

' suit of the election to every person whose name shall be entered 
on the poll list as a voter.(2) L. 1861, p. 226, § 22. 

The ballots cast at an election are "better evidence than the tally list made from, 
them of the number of votes. People v. Holden 28 Cal. R., 123. 

The moderator, as inspector of election, is a ministerial officer, and his action can 
be reviewed by the courts. People v. Pease. 27 N. Y. R. , (13 Smith), 45. 

When an election is authorized to be held in a town for a given purpose, as to de- 
termine the question of subscription to the stock of a railroad company, but no mode is pre- 
scribed in which the election shall be conducted, the election should be held in the manner that 
township elections are required to De held for the election of town officers, and not under the 
general election law. The People ex rel. v. Butcher ; 56 111. R., 144. 

(1) See §§ 1, 10, Art. VIII., post, 

(2) The law seems to contemplate that a canvass of votes shall be made in like manner as pre- 
scribed by the general election law of the State. See " Elections," post. • 

The following may be the form of the canvass : 

Form of Canvass of Votes at Town Election. 

At an election at the annual town meeting in the town of , held 

at , in said town in the county of , and State of Illinois, on 

the day of April, in the year of our Lord one thousand eight hundred 

and , the following named persons received the number of votes 

annexed to their respective names for the following described offices, to- 
wit: 
P. R. had one hundred votes for Supervisor. 
H. G. had seventy-five votes for Supervisor. 
O. H. had one hundred votes for Town Clerk. 
[And in the same manner for any other persons voted for.~\ 

Certified by us. 

A. B., ) 

C. D., J- Judges of Election. 
E. F., ) 

L. M., Moderator. 
Attest: G. H., Town Clerk. 

The canvass thus made should he delivered to the town clerk, and by him be kept on 
file in his office. 

Form of Statement of Result of Canvass to be Entered by the Clerk in 
Minutes of Meeting. 

The following is a statement of the result of the canvass of votes by 
ballot, for the election of officers at the town election at the annual town 

meeting in the town of , in the county of , State of Illinois, 

A. D. 18 — , as canvassed by the judges of election: 

P. R. had one hundred votes for Supervisor. 

H. G. had seventy-five votes for Supervisor. 

O. H. had one hundred votes for Town Clerk. 

[And so on, giving a statement of the votes cast for each person."] 



78 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

71. Tie vote.] § 11. In case two or more persons shall have 
an equal number of votes for the same office, the question of 
which shall be entitled to the office shall be decided between 
such persons by lot, under the direction of the town clerk, but 
he shall give each party notice of the time and place of draw- 
ing lots.(l) L. 1861, p. 226, § 22. 

72. Persons elected notified.] § 12. The clerk of every town 
meeting, within ten days thereafter, shall transmit to each person 
elected to any town office, whose name shall not have been en- 



Where the name of a voter appears on a poll list of persons voting at a township 
election, and the minutes of the meeting were publicly read to the meeting, and the name of a 
voter was read out to the meeting as having been elected overseer ot highways : Held, that he 
had all the notice of his election to which the law entitles him. Too much strictness on such 
subjects as proceedings at town meetings would be fatal to the system of township organization ; 
hence the courts are inclined to be liberal in reviewing such proceedings. Yocum v. Town of 
WaynesvUle, 39 111. ft., 220. 

Where no certificate or other formal mode of making known to a person his elec- 
tion to a public office is required by law, the result of the election as ascertained and announced 
at the close thereof is conclusive upon the election of officers, and cannot afterwards be recon- 
sidered or varied. State v. Warren, 1 Houston, Del. R., 39. 

(1) Form of Notice by Town Clerk of Drawing Lots in case of a Tie Vote 
Between Candidates. 

To J. S. : 

Sir — You having received, at the late town meeting, an equal number 

•of votes with D. K. for the office of Supervisor, of the town of , are 

hereby notified that the question of which of you is entitled to said office 
will be decided by lot at my office in said town, on the day of , 

A. D. 18 — , at the hour of ten o'clock in the forenoon; that, should you 
fail to appear at such time and place, the matter will be decided in your 
.absence 

Dated at , this day of , A. D. 18—. 

J. B., Town Clerk. 

"Where the candidates are present at the announcement of the tie vote at town 
meeting, verbal notice may be given them by the clerk, informally, and the drawing lots take 
place at once, or at some convenient time named. No method of proceeding is prescribed in 
deciding the question between candidates, but the drawing is under the direction of the town 
clerk; he will therefore direct the manner in which to proceed. He may prepare two pieces of 
paper, on one may be written the title or name of the office in question, leaving the other blank ; 
then fold each alike and place them in a box, from which let the candidates draw ; the person 
drawing the paper containing the name of the office to be entitled to it and declared duly 
elected. In case the candidates, or either of them, iail to attend upon being notified, then the 
clerk can select some qualified elector to draw for the absent candidate. 

It is proper that some record should he made toy the town cleric of the manner of 
disposing ol the question of a tie vote between candidates, that the records of the town may 
always show who are elected officers. It would therelore be well for the clerk to add a memo- 
randum at the close of the minutes of proceedings of the meeting, after the signatures of him- 
self and the presiding officer, in the following form: 

Form of Memorandum of Decision oj Tie Vote between Candidates. 

At the annual town meeting in the town of , in the year 18 — , A. 

B. and C. D. having had an equal number of votes for the office of , 

the question of which should be entitled to said office, was, on the 

day of , 18—, duly decided between them by lot, and it was decided 

that the said A. B. should be entitled to said office. 

J. B., Town Clerk. 



.ART. VIH.] MODE OF CONDUCTING TOWN MEETINGS. 79 

tered on the poll list as a voter, a notice of his election.(l) L. 
1861, p. 226, § 23. 

73. List of town officers filed with county clerk.] § 13. The 

town clerk shall file in the office of the county clerk a list of the 
names of all town officers elected at the annual town meeting, 
within twenty days after such election shall be held. [L. 1861, p. 
226, § 24 

AETICLE VIII. 

THE MODE OF CONDUCTING TOWN MEETINGS FOR THE TRANSACTION OF 
MISCELLANEOUS BUSINESS. (2) 

Section. 

74. Hour of meeting, etc. 

75. Clerk of meeting — Record. 

76. Clerk pro tern. 

77. Duties of moderator. 

78. Motions — How decided. 

79. Division of voters. 

80. Miscellaneous business closed— Reconsidering motions. 

81. Disorderly conduct. 

82. Qualification of voters. 

83. Proceeding witn election. 

74. Hour of meeting, etc.] § 1. At the hour of two o'clock in 
rfche afternoon, on the day of an annual or special meeting, the 
polls shall be closed ; and the moderator shall call the meeting to 
order for the transaction of miscellaneous business. [L. 1861, p. 
224, § 7. 

(1) Form of Notice by Town Clerk to a Person Elected to a Town Office whose 
Name is not on the Poll List. 

To G. N., Esq., of the town of , in the county of : 

You are hereby notified that at the election at the annual town meeting 

[or special, as the case may be] held in said town, at — , on the 

day of , A. D. 18 — , you were duly elected to the office of supervisor. 

Given under my hand at , this day of , A. D. 18 — . 

J. B., Town Clerk. 

(2) Utiles for town meetings. Town meetings, provided by this act, are conventions or 
assemblies of the legal voters of the town, forming what is, termed deliberative assemblies, for the 
transaction of business pertaining to their local interests — exercising certain powers, not dele- 
gated to their representatives, each elector appearing and acting for himself, and being account- 
able to no one for his acts. Meetings of this kind are conducted according to certain rules which 
experience has shown to be fit and necessary for that purpose. The rules necessary in conduct- 
ing the ordinary business of a town meeting are few and simple, and are such as would occur to 
the good sense of every man of ordinary intelligence. In disposing of business properly and 
with dispatch much depends upon the moderator or presiding officer; if he thoroughly under- 
stands his duties, and performs them properly and promptly, he will greatly facilitate the busi- 
ness of the meeting. The general duties of the presiding officer, as laid down in the books of 
..parliamentary practice, are the following : 



80 TOWNSHIP ORGANIZATION ACT. [DIY. L 

75. Clerk of meeting— Record.] § 2. The town clerk, if them 
be one and he is present, shall act as clerk of the meeting, and 

To open the sitting, at the time to which the assembly is adjourned, by taking the chair and 
calling the members to order. 

To announce the business before the assembly in the order in which it is to be acted upon. 
To receive and submit, in the proper manner, all motions and propositions presented by the- 
members. 

To put to vote all questions which are regularly moved, or necessarily arise in the course of the 
proceedings, and to announce the result. 

To restrain the members, when engaged in debate, within the rules of order. 

To enforce on all occasions, the observance of order and decorum among members. 

To receive all messages and other communications, and announce them to the assembly. 

To inform the assembly, when necessary, or when referred to for the purpose, on points of order 
or practice. 

To name the members (when directed to do so in a particular case, or when it is made a part 
of his general duty, by a rule,) who are to serve on committees; and, in general. 

To represent and stand for the assembly, declaring its will, and, in all things, obeying implicitly 
its commands. Cushing's Manual. 

The principal duties of the moderator are briefly defined by this act to be: to preside 
at the town meeting; to make announcement of the business of the meeting; to preserve order, 
and to decide all questions of order. To ascertain and declare the result of votes taken on all 
questions. To suppress disorderly conduct. To call the meeting to order for miscellaneous busi- 
ness, and announce the conclusion thereof. See H 1, 4, 7, 8, of this Article. 

After the meeting is organised, hy the election, and qualification of the proper 
officers, the moderator should announce that the meeting is organized and ready to proceed to 
business— that the first business in order will be the opening of the polls and proceeding to the 
election of such officers of the town as are to be elected by ballot. At the hour of two o'clock p. 
m., he should announce that the hour of two o'clock in the afternoon having arrived, the trans- 
action of miscellaneous ousiness is in order In the absence of any rule to the contrary, it will 
be proper for the moderator to direct the order in which the various subjects for action should 
be taken up, and announce each as it comes up in its order for action. 

It is the practice with all legislative assemblies to adopt standing rules for their government,. 
which the presiding officer is to observe and enforce. It would not be improper tor the electors 
of a town at a town meeting to pursue a similar course, and adopt standing rules regulating the 
order of business and the manner of conducting all town meetings, not inconsistent with the 
law. to be observed and enforced by the moderator; this would greatly facilitate business, secure- 
uniformity and relieve the moderator from embarrassment in arranging the order of business at 
each meeting. 

The rules governing the conduct of deliberative assemblies are called " parliamentary rules." 
They are so called from their origin in the English Parliament. These rules, in process of time, 
as a whole have become veiy extensive, and, indeed, somewhat intricate. In conducting a town, 
meeting it would be impracticable to attempt to observe that nicety in regard to these rules 
which is adhered to in legislative assemblies. 

An important feature in parliamentary practice is, that the sense of the meeting is taken, 
through the agency of a motion, made by some member and seconded by another. After a mo- 
tion is thus made and seconded, the presiding officer proceeds promptly to state it to the meeting, 
thus : " Gentlemen, it is moved that" [stating the motion as made]. " Those in favor of this mo- 
tion will say aye." "Those opposed will say no." If the motion prevails, he should announce 
the vote thus : " It is carried in the affirmative," or, " The motion has prevailed." If the motion 
fails, then say, " The motion is lost." 

After the moderator has t'aus declared the vote, it becomes the sense of the meeting, and will 
stand as such until rescinded or reconsidered by another motion made for that purpose. 

Where a vote is nearly equal, and it is difficult to determine the result, the moderator should 
not hastily declare the vote, but should say: " The ayes seem to have it," or, "The noes seem to 
have it " If no one interposes, he will declare the result as it seems to him. If any one wishes 
to interpose, deeming that it seems to the moderator differently from the fact, he should do so 
by promptly calling for a division. This may be done by a "show of hands," by rising; or by 
literally dividing the house— that is, those voting in the affirmative all going to one side of the 
room, and those in the negative going to the other. After the vote has been declared by the 
presiding officer, it is too late to call for a division. 

It is a general rule that a motion to lay a proposition on the table and a motion to adjourn is 
not open to debate. But otherwise with a motion to lay on the table for a time limited, or to ad- 
journ to a day certain. 

The moderator should be prompt in putting motions. It is no part of his duty to invite- 
Parliamentary rules, as existing by custom, may be modified by rules fixed by the assembly. 

On the subject of parliamesi tary law generally, see Appendix, post 



ABT. Yin.] MODE OF CONDUCTING TOWN MEETINGS. 81 



shall keep faithful minutes of the proceedings, in a book to be 
known as the town record, in which he shall enter at length every 
order or direction, and all rules and regulations made by such 
meeting, which entry shall be signed by himself and the modera- 
tor of the meeting. (1) L. 1861, p. 223, § 3. 

(1) Form of Minutes of Proceedings of Town Meeting. 

At the annual town meeting held in the town of , county of , 

and State of Illinois, at [state place of meeting], on the day of , 

A. D. 18 — , the meeting was called to order by F. C, town clerk. N. S. 
was duly chosen to preside as moderator, who, being first duly sworn by 
A. S., Esq., a justice of the peace in said town, entered upon the duties of 
his office. 

The polls for the election of officers were opened, proclamation thereof 
being first duly made by the clerk. 

The hour of two o'clock in the afternoon having arrived, and the gen- 
eral business of the day being now in order, 

The following named persons were chosen overseers of highways for the 
ensuing year, in the following road district, to-wit: [Here give the names 
of persons and number of districts for which they are chosen.'] 

On motion of Mr. J. C, ordered that a pound for impounding animals 
be established and erected at [here state where], within sixty days from 

this date, not to exceed in cost the sum of dollars, and that the same 

be erected and constructed under the direction of the pound master. 

Mr. W. B. offered the following resolution, which, on motion, was 
adopted : 

Resolved, That, [set forth the resolution.] 

On motion the following by-laws were adopted : [Set forth copy of the 
by-laws as adopted.] 

A request by twenty-five electors having been duly filed with the town 
clerk, that a change be made in the place of holding town meetings to 
[state the place designated], and notice thereof having been included and 
given in the notice of this annual town meetiug, a vote was had thereon 
by ballot, which resulted as follows : For changing the place of holding 
town meetings to [name of place proposed], one hundred votes. Against 
changing the place of holding town meetings, ninety votes. A majority 
of all the votes cast being in favor of the proposed change [or as the case 
may be], the place of holding town meetings was declared changed to 
[state the place.] 

[In like manner set forth each order or direction as they transpire ; after 
vhich, at the close, set forth the statement of the canvass of the votes, as 
directed by section 10 of this article, post, p. 84.] 

On motion, meeting adjourned without day. 

F. C, Town Clerk. 
N. S., Moderator. 

In case there is no town cleric, or he is absent, at the opening of the town meeting, the 
entiy in the minutes of the meeting may be as follows: 

The town clerk not being present [or as the case may be], on motion 
Mr. L. M., one of the voters present, was elected by acclamation as chair- 
man, whereupon the electors proceeded to choose one of their number to 
preside as moderator of the meeting, and Mr. A. B. was chosen as such 
moderator. 

The moderator may be chosen by ballot; this mode of choosing moderator is the rule in some 
of the eastern States, where the position is considered an important one, and the choosing is 
often zealously contested. 



82 TOWNSHIP ORGANIZATION ACT. [BIT. I. 

76. Clerk pro tern.] § 3. If there is no such clerk present, the 
meeting shall choose a clerk pro tern., who shall take a like oath 
as that required of the moderator, and shall act as clerk of the 
meeting.(l) [L. 1861, p. 224, § 4. 

77. Duties of Moderator.] § 4. The moderator of such meet- 
ing shall preside thereat, make announcement of the business be- 
fore the meeting, preserve order, and decide all questions of order. 
[L. 1861, p. 224, § 5. 

78. Motions— How Decided.] § 5. All questions upon motions 
made at town meetings shall be determined by a majority of the 
electors present and voting, and the moderator shall ascertain and 
declare the result of the vote upon each question. (2) L. 1861, p. 

224, § 6. 

79. Division of voters.] § 6. When the result of any vote 
shall, upon such declaration, be questioned by one or more of the 

In case of choosing a clerk pro tern (time being) of the meeting, the following may be the form 
of entry in the minntes : 

The town clerk being absent, E. F. was chosen clerk pro tern., and was 
duly sworn. 

It seems that the clerk's record of the proceedings of a town meeting will be considered suffi- 
cient evidence of the facts therein set forth, as transpiring at that meeting. Briggs v. Murdoch, 13 
Pick. B., 305. 

It is competent for a town clerk to rectify errors which he has made in record- 
ing the proceedings of the town, by amending the record, so that it shall state those proceedings 
truly. Boston Turnpike Co. v. Pomfort, 20 Conn. B., 590 ; Chamberlain v. Dover, 13 Maine B., 466. 

Town records may be amended by the person who was in the office at the time of the 
proceedings had, when the record is to be used as evidence in a suit in court, provided satisfac- 
tory evidence can be shown of the truth of the facts alleged. Cass v. Bellows. 31 N. Hamp. (11 
Fost.) B., 501 ; Low v, Pettingil, 12 N. Hamp. B., 337 ; Pierce v. Richardson, 37 N. Hamp. B., 306. 

One formerly a town cleric cannot, after he lias left the office, amend a town 
record made by him when clerk. Hartwell v. Inhabitants of Littleton, 13 Pick. (Mass.) B.. 229. 
But held otherwise in New Hampshire. (Gibson v. Bailey, 9 N. Hamp. B., 168. 

A town clerk may amend a record, according to the truth, made by him when in 
office under a former election. Wells v. Batelle, 11 Mass. B., 477. The intervening election is 
held to be substantially a continuance of the clerk in the same office. Hartwell v. Littleton, 13 
Pick. B., 229. 

A town clerks' record of proceedings of a town meeting, as amended by him- 
self, cannot be controlled by parol evidence. Halleck v. Boylston, 117 Mass. B„ 469. 

A writ of mandamus will issue to compel a town clerk to record the proceed- 
ings of a town meeting, as publicly declared by the moderator; also, to correct his record to con- 
form to such declaration. Hill v, Goodwin, 56 N. Hamp. B., 44. 

(1) A certified copy of the proceedings of a town meeting, as kept and reported by 
a clerk pro tern to the town clerk, is admissible in evidence to show the vote of the meeting. 
Hickok v. Shelbourne, 41 Vt. B., 409. 

(2) At a town meeting the balloting was carried on in a room within a house, 
and a resolution being proposed and drawn up in the presence of the presiding officers, by their 
direction, the clerk proceeded outside of the building where most of the persons attending the 
town meeting were, and, in the presence of one of the presiding officers, there put the motion, 
and it was by him or the presiding officer declared carried, and no one made objection. Held, 
that the resolution was duly passed. People v. Tabor, 21 How. (N. Y. Pr., 42. 

Votes of a town at town meeting, unless carried into execution so that indi- 
vidual rights have vested, may be altered or rescinded by subsequent meetings. Denton v. Jack- 
son, 2 Johns. Ch. B., 320. 

A town meeting cannot properly audit accounts against the town. This duty is 
conferred on town auditors. People v. Onondaga, 16 Mich. B., 254. See Art. XIIL, § 4, post, 



AKT. VIII. ] MODE OF CONDUCTING TOWN MEETINGS. 83 

-electors present, the moderator shall make the vote certain by caus- 
ing the voters to rise and be counted, or by dividing off. L. 1861, 
p. 224, § 5. 

80. Miscellaneous business closed — Reconsidering motions.] 

§ 7. When the business of the meeting is concluded, the modera- 
tor shall make announcement thereof, and after such announce- 
ment is made all miscellaneous business shall be deemed concluded 
for that day, unless the electors shall, at the time of such an- 
nouncement, order otherwise ; but in no event shall any question 
which has been disposed of before such announcement be there- 
after reconsidered, unless the motion therefor is sustained by a 
number of votes equal to at least a majority of all the names en- 
tered on the poll list on that day up to the time of making such 
motion. [L. 1861, p. 224, § 7. 

81. Disorderly conduct.] § 8. If any person shall conduct in 
■a disorderly manner at any such meeting, and, after notice from 
the moderator, shall persist therein, the moderator may order him 
to withdraw therefrom, and on his refusing may order any consta- 
ble or other person to take him from the meeting and confine him 
in some convenient place until the meeting is adjourned ; and the 
person so refusing to withdraw, shall, for such offense, forfeit a 
sum not exceeding $10, for the use of the town, to be recovered in 
an action of debt in the name of the town, before any justice of 
the peace of the town.(l) [L. 1861, p. 224, § 8. 

82. Qualification of voters.] § 9. No person shall be allowed 
to vote or participate in any such meeting . unless he shall be a 
qualified elector of such town.(2) L. 1861, p. 214; § 9. 

(1) The order of the moderator to take a person from the meeting for disorderly- 
conduct, need not be in writing, but may be given to the constable, or other person, verbally; 
but if it is desired to recover the forfeiture or penalty provided for, it will be an independent 
matter, and must be prosecuted as in other cases of fines or penalties going to the town. Parsons 
v. Brainerd, 17 Wend. R., 522. 

The proceedings to collect a fine for disorderly conduct at town meeting, the law 
•contemplates shall be conducted like any ordinary suit before a justice of the peace. The pro- 
cess may be the general form of summons prescribed by the statute. See Haines' Treatise, new 
edition, p. 182. 

Held, in Massachusetts, an indictable offense to violently and rudely disturb a town meeting. 
Commonwealth v. Hoxey. 16 Mass. R., 385. Or to give in more than a single vote upon one ballot- 
ing for town officers. Commonwealth v. Silsbee, 9 Mass. R., 417; Walker v. Winn, 8 Mass. R., 248; 
Bradley v. Heath, 12 Pick. (Mass.) R., 163. 

(2) As to who are qualified electors of the town, the Constitution of Illinois, Art. 
I v., entitled "Suffrage," declares: 

Section I. Every person having resided in this State one year, in the county ninety days, and 
in the election district thirty days next preceding any election therein, who was an elector in this 
State on the first day of April, in the year of our Lord one thousand eight hundred and forty-eight, 
or obtained a certificate of naturalization before any court of record in this State prior to the first 
day of January, in the year of our Lord one thousand eight hundred and seventy, or who shall 
he a male citizen of the United States above the age of twenty-one years, shall be entitled to vote 
at such election. 

Sec. 2. All votes shall be by ballot. 

Sec 3. Electors shall, in all cases, except treason, felony, or breach of the peace, be privileged 
-from arrest during their attendance at elections, and in going to and returning from the same 



84 TOWNSHIP OEGANIZATION ACT. [DIV. I. 

83. Proceeding with election.] § 10. When the miscellaneous- 
business of that day shall have been transacted, the moderator 
shall announce the polls of the election open, and the election 
shall proceed. 

AETICLE IX. 

QUALIFICATION AND TENURE OF OFFICE. 

Section. 

84. , Who eligible to office. 

85. Qualifying. 

86. Neglect to qualify. 

87. Poimdmaster — Notice of acceptance. 

88. Collector— Bond. 

89. Failure of collector to give bond. 

90. (Supervisor, etc., refusing to serve. 

91. Entering upon office before taking oath. 

92. Term of office. 

93. Successor to demand books, etc. 

94. Demand in case of vacancy. 

95. Out going officer to deliver over. 

96. Demand upon executors, etc. 

84. Eligible to office.] § 1. No person shall be eligible to any 
town office unless he shall be a legal voter, and have been one 
year a resident of such town.(l) [L. 1861, p. 226, § 1. 

And no elector shall be obliged to do military duty on the days of election, except in the time of 
war or public danger. 

Sec. 4. No elector shall be deemed to have lost his residence in this State by reason of his ab- 
sence on the business of the United States or of this State, or in the military or naval service of 
the United States. 

Sec. 5. No soldier, seaman, or marine in the army or navy of the United States, shall be deemed 
a resident of this State in consequence of being stationed therein. 

Sec. 6. No person shall be elected or appointed to any office in this State, civil or military, who 
Is not a citizen of the United States, and who shall not have resided in this State one year next 
preceding the election or appointment. 

Sec. 7. The General Assembly shall pass laws excluding from the right of suffrage persons 
convicted of infamous crimes. 

See also Div. " Elections," §§ 65, 66, post. 

(!) Town officers must "be inhabitants of the town in which they are chosen, and 
they cease to be officers when they cease to be inhabitants. Sane v. Oreenwich, 1 Pick. R., 120. 

No person is eligible to a town office unless lie has been a resident of the town for 
one year next preceding the time oi his election. Where L., in the year 1860. was a resident of 
the town of Cicero; in 1861 removed his family to the city of Chicago, adjoining the town; in 
the same year entered the army, leaving his family in Chicago; in 1864 had a farm and lived in 
Missouri; in March, 1866, returned to ( :icero, and in November was chosen a constable of the 
town. Held, that his residence could only be counted from March preceding the election;, 
therefore he could not hold the office legally. Laimbeer v. The People ex rel., 48 111. R., 490. 

The light to an office cannot be determined by an action of replevin of its appur- 
tenances Desmond v. McCarthy, 17 Iowa R., 525. 

And an officer de facto is entitled to the possession of his office during the pro- 
cedings to oust him from it. Leach v. Cassidy, 23 Ind. R., 449. 

A town officer can perform no official act outside of and beyond the territorial 
limits in which he is authorized and required to act, unless expressly authorized by law. An 
assessor not being authorized to assess property out of his township, cannot lawfully administer 



AKT. TX.] QUALIFICATION AND TENTTKE OF OFFICE. 85 

85. Qualifying.] § 2. Every person elected or appointed to 
trie office of .supervisor, town clerk, assessor, commissioner of 
highways or collector, before he enters upon the duties of his 
office, and within ten days after he shall be notified of his election 
■or appointment, shall take and subscribe, before some justice of 
the peace or town clerk, the oath or affirmation of office pre- 
scribed by the constitution, which shall, within eight days thereaf- 
ter, be filed in the office of the town clerk. (2) L. 1861, p. 226, 
§ 2, 3. 

86. Neglect to qualify.] § 3. If any person elected or ap- 
pointed to either of the offices above enumerated shall neglect to 
take and subscribe such oath, and cause the certificate to be filed 
as above required, such neglect shall be deemed a refusal to serve. 
[L. 1861, p. 227, § 4. 

87. Pound master — Notice of acceptance.] § 4. Every person 
elected or appointed to the office of pound master, before he en- 
ters on the duties of his office, and within ten days after he shall 

«,n oath to a person, except in his township in relation to his rights and credits liable to assess- 
ment. Van Duzen v. The People, 78 111. R., 645. 

(2) Tlie term ei notified " as nsed in. the law, would seem to import a formal notice, and 
not mere knowledge on the part of the person notified. Potwine's Appeal, 51 Conn R., 387. 

Form of Oath to be Taken and Subscribed by Town Offlcer. 

State of Illinois, 

County. 

I, A. B., do solemnly swear [or affirm, as the case may be~] that I will, 
support the constitution of the United States and the constitution of the 
State of Illinois, and that I will faithfully discharge the duties of the 
office [here insert the title of the office'] according to the best of my ability. 

A. B. 

Taken and subscribed before me this day of , A. D. 18 — . 

C. D., Town Clerk. 

The foregoing is the general form of official oath prescribed by the Constitution. 
Art. V., Sec. 25. 

Supervisors are required (See Div. " Counties and County Affairs," Sec. 52, post,) to lay before 
the board of supervisors, at their first meeting after the annual town election, certificates of their 
election; each supervisor will, therefore, after his qualification, be entitled to a certificate of his 
•election, which should be issued by the town clerk, and may be in the following form: 

Form of Supervisors Certificate of Flection. 
— County, ) gs 

Town of . ) 

I, J. G., town clerk of said town of , do hereby certify that at the 

election at the annual town meeting in said town, on the - day of , 

A. D. 18 — , W. H. was duly elected supervisor of said town, or was, on 

the day of , A. D. 18—, duly appointed, etc.] ; that he has been 

duly qualified as such by taking the oath of office and giving bond as re- 
quired by law. 

In witness whereof I have hereunto set my hand this day of 

A. D. 18—. 

J. D., Town Clerk. 



86 TOWNSHIP ORGANIZATION ACT. [DIV. I, 

have been notified of his election or appointment, shall cause to- 
be filed in the office of the town clerk a notice signifying his ac- 
ceptance of such office. A neglect to cause such notice to be filed 
shall be deemed a refusal to serve. (1) L. 1861, p. 227, § 5. 

88. Collector — .Bond.] § 5. Every person elected to the office 
of collector, before he enters upon the duties of his office, shall 
give the bond required by law.(2) [L. 1861, p, 227, § 6. 

89. Failure of collector to give bond.] § 6. If any person 
elected to the office of collector shall not give such security and 
take such oath as is required above, within the time limited for 
that purpose, such neglect shall be deemed a refusal to serve. [L- 
1861, p. 228, § 12. 

(1) Form of Notice of Acceptance of Overseer of Highways or Pound Master. 

To S. L., Town Clerk of the town of : 

Sir — Having been elected [or appointed] overseer of highways for dis- 
trict No. , in said town [or pound master for said town, as the case 

may 6e], on the day of— , A. D. 18 — , I hereby notify you that I 

accept the office. 

Witness my hand this day of , A. D. 18—. C. E. 

The failure of a town, officer to talce and snbsciibe tlie oath or affirmation of office 
within the time prescribed, vacates the office. State v. Matheney, 7 Kans. R., 327. But where the 
question of vacancy is brought in controversey, it is held that the simple fact of failure to take 
the oath is not sufficient; that it must appear that not taking the oath in time was by the fault 
or failure of the officer elect Rons v. Williamson, 44 Ga. R., 501 ; State v. Falconer, 44 Ala. R., 696. 

(2) For form of collector's bond, and time of executing the same, see Div. " Revenue/ 
1 133, post 

Liability of collectors and sureties. Although the proceedings of a town are very ir- 
regular and informal, at a meeting where assessor, treasurer and collector of taxes are elected, 
and taxes voted to be assessed, yet the collector is legally bound to pay over to the tree.-urer de 
facto all taxes voluntarily paid to him by the tax payer. Trescotv. Moan, 40 Maine R., 347. 

The neglect of the proper authorities to compel the collector to promptly account for moneys 
collected, will not have the effect to release the sureties on his bond. Readfield v. Shaver, 50 
Maine R., 36. 

Where a person was collector of taxes for two successive years, and at the end of the second 
year proved to be a defaulter, he had a right to appropriate payments made by him to the town 
either year, at the time he made each payment; if he failed so to appropriate them, the town 
might appropriate them as they desired ; and if no appropriation was made by either, the law 
would appropriate such payment to the oldest debts, although the whole deficit is tnerebymade 
to fall on the second year. When the sureties of such collector on his official bond are not the 
same for the second year as the first, in a suit on one of the bonds for an alleged default, it is for 
the defendant to show what part of the deficit belonged to each year. Readfield v. Shaver, 50- 
Maine R. 36. 

A collector's bond, dated August 15, 1854, and reciting that he was "chosen collector of taxes 
for the year ensuing." it appearing that he was chosen in 1854, his tax bills bearing date that 
year, and that he collected that year's taxes, will be deemed to have reference to the municipal 
year 1854. Trescott v. Moan, 40 Maine R., 347. 

The sureties on a tax collector's bond are bound although the collector never took the oath of 
office, if in fact he acted as collector. Lyndon v. Miller, 36 Vt. R., 329. 

Held, in California, that taxes collected by a tax collector can be recovered from him in a sin- 
gle action, in the name of the people, although a part ol them are due to the State and a part to- 
the county. People v. Xove, 25 Oal. R., 520. 

To maintain an action against a collector for money collected by him and not paid over at the- 
time required, no previous demand of him is necessary. Wentworlh v. Gove, 45 N. Hamp;. 
R., 160. 

The section of the revenue law malting a town collector's bond a lien against; 
his real estate (seeped, Div. " Revenue." § 134,) does not repeal the homestead exemption act,, 
so far as his bond is concerned. A judgment rendered against a town collector upon his official* 



ABT. IX.] QUALIFICATION AND TENURE OF OFFICE. 87 

90. Supervisor, etc., refusing to serve.] § 7. If any person 
elected to the office of supervisor, town clerk, assessor or commis- 
sioner of highways, shall refuse to serve, he shall forfeit to the 
town the sum of $25.(1) [L. 1861, p. 228, § 13. 

91. Entering upon office before taking oath.] § 8. If any town 
officer who is required by law to take the oath of office shall enter 
upon the duties of his office before he shall have taken such oath, 
he shall forfeit to the town the sum of $50. [L. 1861, p. 228, § 15. 

92. Term of office.] § 9. Town officers, except as otherwise 
provided, shall hold their offices for one year, and until others are 
elected or appointed in their places and are qualified. [L. 1861, p. 
228, § 16. 

93. Successor to demand books, etc.] § 10. Whenever the 
term of any supervisor, town clerk or commissioner of highways 
shall expire, and other persons shall be elected or appointed to 
such office, it shall be the duty of such successor, immediately 
after he shall have entered upon the duties of the office, to demand 
of his predecessor all the books and papers under his control, be- 
longing to such office. [L. 1861, p. 228, § 17. 

94. Demand in case of vacancy.] § 11. Whenever either of 
the officers above named shall resign, or the office become vacant 
in any way, and another person shall be elected or appointed in 
his stead, the person so elected or appointed shall make such de- 
mand of his predecessor, or of any person having charge of such 
books and papers. [L. 1861, p. 229, § 18. 

95. Outgoing officer to deliver over.] § 12. It shall be the duty 
of every person so going out of office, whenever thereto required 
pursuant to the foregoing provisions, to deliver up, on oath, all the 

bond, is like any other judgment, and creates no lien which can be enforced against his home- 
stead, except in the mode pointed out by statute. The homestead right is protected against all 
liens and sales, and against all modes of conveyance, whether by deed absolute or bj mortgage, 
unless released or disposed of in the mode pointed out in the homestead act. When the value 
of the homestead exceeds $1,000, on paying that to the owner, it may be sold under an execu- 
tion; and in such a contingency a judgment, whether upon the official bond of a collector or 
otherwise, mav be enforced, but it does not create a lien against the homestead of the debtor. 
Hume etal.v. Gossett, 43 111., R., 297. 

Where a township collector received from the county clerk an official bond, with the proper 
amount named in it, for him to execute, held this was a sufficient notice of the amount of taxes 
to be collected by. him, and it was his duty to have the bond executed and presented to the 
proper authority for approval within eight days thereafter, and his failure to do so was properly 
deemed a refusal to serve, and the town board was justified in refusing a bond afterwards pre- 
sented and in appointing another person to the office, fyss v. The People, 78 111. R.. 375. 

(1) A person, who lias heen chosen or appointed to a town office, and neglects or 
refuses to serve, whereby he incurs the penalty imposed by law, cannot be again chosen or ap- 
pointed to such office, or made liable to a second penalty for the second refusal to act. Hay- 
wood v. Wheeler, 11 Johns. R., 432. 

It is held that an action for the penalty imposed will not lie except where the 
town proceed to a new election. That merely neglecting to file notice of the acceptance with 
the town clerk is not sufficient: the object of the law being to enforce the performance of the 
duties, and if the town proceed to a new election, then to exact the penalty. Winnegar v. Rae, 
1 Cowen R., 258. 



88 TOWNSHIP ORGANIZATION ACT. ' [DIV. I. 

records, books and papers in his possession or in his control be- 
longing to the office held by him ; which oath may be administeied 
by the officer to whom such delivery shall be made. It shall also 
be the duty of every supervisor and commissioner of highways, so 
going out of office, at the same time to pay over to such successor 
the balance of moneys remaining in his hands as ascertained by 
the auditors of town accounts.(l) [See Rev. Stat., Crim. Code, 
§ 216. L. 1861, p. 229, § 19. 

96. Demand of executor, etc.] §13. Upon the death of any 
of the officers enumerated, the successor of such officer shall make 
such demand as above provided of the executors or administra- 
tors of such deceased officer ; and it shall be the duty of such exe- 
cutors or administrators to dehver up, on the like oath, all records, 
books and papers in their possession or under their control, be- 
longing to the office, held by their testator or intestate. [L. 1861, 
p. 229, § 20. 

AETICLE X. 

VACANCIES IN TOWN OFFICES AND THE MANNER OF FILLING THEM. 

Section. 

97. Board of appointment. 

98. Vacancy in board of appointment. 

99. Notice of appointment. 
100. Resignations. 

97. Board of appointment.] § 1. Whenever any town shah 
fail to elect the proper number of town officers to which such town 
may be entitled by law, or when any person elected to any town 
office shall fail to qualify, or whenever any vacancy shall happen 
in any town, from death, resignation, removal from the town, or 
other cause, it shall be lawful for the justices of the peace of the 
town, together with the supervisor and town clerk, to fill the 
vacancy by appointment, by warrant under their hands and seals ; 
and the persons so appointed shall hold their respective offices 
during the unexpired term of the persons in whose stead they have 
been appointed, and until others are elected and appointed in their 
places, and shall have the |ame powers and be subject to the same 

(1) Form of Oath to be Administered to Town Officer on Going Out of 

Office. 

You do solemnly swear [or affirm~\ that you have delivered to A. B. 
[name of successor in office'] all the records, books and papers in your pos- 
session or in your control, belonging to the office of supervisor for the town 
of , so help you God. 



ART. X.] VACANCIES — HOW FILLED. 89 

duties and penalties as if they had been duly elected or appointed 
by the electoral) [L. 1861, p. 229, § 1. 

98. Yacancy in board of appointment.] § 2. Whenever a va- 
cancy shall occur, from any cause, in any or either of the offices 
enumerated in the foregoing section, as composing the board of 
appointment for the appointing of town officers in case of vacancy, 
it shall be lawful for the remaining officers of such appointing 
board to fill any vacancies thus occuring, except in cases of va- 

(1) Form of Warrant of Appointment by Justices of the Peace, Supervisor and 
Town Clerk, to Fill Vacancy. 

To R. H., Esq., of the town of , in the county of , and State of 

Illinois, greeting: 

Whereas, at the annual meeting of said town, held on the day of 

April, A. D. 18 — , said town neglected to choose a [here insert the title of 
the office vacant, ~] for the current year [or as the case may be], whereby 
said office has become vacant. 

Therefore, we, reposing full confidence in your integrity and ability, 
have appointed and do hereby appoint you a [here insert the title of the 
office], for said town, to hold said office until some other person shall be 
chosen or appointed in your stead , and you will have the same powers, 
and be subject to the same duties and penalties as if you had been duly 
chosen by the electors of said town. 
In witness whereof, we have hereunto subscribed our names and affixed 

our seals, at , this day of , A. D. 18—. 

J. P., Justice of the Peace, [seal,.' 
S. W., Justice of the Peace. [seal. = 
J. C, Supervisor. [seal/ 

W. G., Town Clerk. [seal.] 

Where the law required tlie appointment of a collector of taxes to be in ■writing, but the 
appointment was made by parol, and a tax warrant issued to him upon such appointment, held; 
that although the appointment was irregular, the person thus appointed was an officer de facto, 
and his acts were valid as to the public and third persons. Hamlin v. Dingman, 5 Lans. (N. Y.) 
R., 61. 

One appointed to an office by a person having no authority, and commissioned 
by a person having no authority, is an officer de facto. Mattett v. Uncle Sam, etc., 1 Xev. R., 1S8; 
Sawyer v. Hayden, 1 Nev. R , 75. 

After the appointment of any person to a town office to fill a vacancy, the 

electors cannot hold a special town meeting and fill such vacancy by election; the person ap- 
pointed will hold over until the expiration of the time for which his predecessor was elected. 
People v. Van Home, 18 Wend. R., 515. 

Before the board can appoint, a vacancy mnst in fact exist. The vacancy can 
not be created by the mere act of the board declaring that a vacancy exists. Opin. Att'y Gen'l 
•Colville, (Minn.) May 2, 1867. 

Where the proper appointing power in a town meet and determine that there 
is a vacancy in the office of assessor, by a failure to elect one, and they appoint one who qualifies, 
his acts in making the assessmont as a de facto officer will be good and valid until he is ousted by 
proper proceedings for that purpose. People ex rel. v. Lieb, 85th 111. R., 484; Scott, J. dissenting. 

"Where a town clerk declared pnblicly his intention of removing from the 
town and county, and consulted with the justices of the peace as to the appointment of his suc- 
cessor, and actually thereafter left the town, and his successor was appointed. Held, that the lat- 
ter was entitled to the office. Matter of Bagley, 27 How. (X. Y.) Pr., 151. 

No authoritv exists to appoint a person to an office, such as toAvn assessor, who is not a resident 
of the town. Opin. Att'y Gen'l Cole, (Minn.) Vol. 1, 214. 

Concerning vacancies in town offices, see Div. "Elections," g? 124, 125. The provi- 
sions of these sections, it would seem, are intended to apply also to town officers, as well as others, 
except that the resignation of town officers is to be made to the justices of the peace of the townj 
as provided by this act. Art. X., § 4, post. 



90 TOWNSHIP ORGANIZATION ACT. [DIV. I*. 

cancy in the office of justice of the peace or constable. (1) L. ] 861,, 
p. 229, § 2. 

99. Notice of appointment.] § 3. When any appointment shall 
be made, as provided in the two preceding sections, the officers 
making the same shall cause the warrant of appointment to be forth- 
with filed in the office of the town clerk, who shall immediately 
give notice to each person appointed.(2) [L. 1861, p, 230, § 3. 

(1) In regard, to vacancy in the office t f justice of the peace and constable the- 
act concerning justices of the peace and constables (see Haines' Treatise — new edition, p. 72). 
enacts: 

Sec. 3. When a vacancy occurs in the office of a justice of the peace or constable by death, resig- 
nation, removal from the town or precinct, or other cause, if the unexpired term exceeds one 
year, his office shall be filled by special election, and it shall be the duty of the town clerk, in 
counties under township organization, and county clerks, in counties not under township organ- 
ization, in case of such vacancy, to issue his order to the judges of election of the proper town or 
precinct, requiring them on a certain day therein named, not less than twenty days from the 
issuing of such order, to hold an election to fill such vacancy, and at the same time the county 
clerk shall deliver to such judges three copies of a notice of such election, two of which notices 
shall be posted up in such town or precinct in the most public places therein. And an election 
shall be held pursuant to such order, and conducted as other elections. If the unexpired term' 
of his office does not exceed one year, the vacancy shall be filled by appointment by the county 
board. 

Form of Order of Special Election for Justice of the Peace or Constable. 
To the judges of election of the town of , in the county of , Ill- 
inois : 

You are hereby ordered and required to hold a special election in said 

town on the day of , A. D. 18 — , for the election of one justice of 

the peace [or constable, as the case may be~\, to fill a vacancy existing in 
that office in said town. Herewith are delivered to you three copies of a 
notice of such election, two of which should be posted up in said town, in 
the most public places therein. 

Given under my hand, this day of , A. D. 18 — . 

A. B., Town Clerk. 

Form of Notice for Special Flection of Justice of the Peace or Constable* 

SPECIAL ELECTION. 

Notice is hereby given that a special election will be held in the town. 

of , in the county of , and State of Illinois, at , on the 

day of , A. D. 18 — , for the purpose of electing one justice of the 

peace [or constable, as the case may be,'] to fill a vacancy existing in that 
office in said town, which election will be opened at eight o'clock in the 
morning, and continue open until seven o'clock in the afternoon of that 
day. 

Dated at , this day of , in the year of our Lord one thou- 
sand eight hundred and . 

A. B., Town Clerk. 

It would seem proper that special elections for justices of the peace and constables 
should be held in the manner that regular town elections are held, under this act; that is, through 
the organization of a town meeting. It has been held that where a town election is authorized 
to be held, and no mode of conducting it is provided, that it should be conducted according to 
the township organization act, and not under the general election law. The People ex rel. etc. v. 
Dutcher, 56 111. R., 144. 

(2) Form of Notice by Town Clerk to one Appointed to Fill Vacancy, 

To R. H., Esq., of the town of , in the county of , and State of 

Illinois : 
You are hereby notified that on the day of , A. D. 18—, J. P., 



ART. X.] VACANCIES — HOW FILLED. 91 

100. Resignations.] § 4. The justices of the peace of a town 
may, for sufficient cause shown to them, accept the resignation of 
any town officer of their town, and whenever they shall accept any 
such resignation, they shall forthwith give such notice thereof to 
the town clerk of the town, who shall make a minute thereof upon 
the town records : Provided, that in towns having more than two 
justices of the peace, such resignation may be accepted by any two 
of them ; and in case of the resignation of a justice of the peace or 
constable, the town clerk shall immediately, upon receiving notice 
thereof, transmit a copy of such notice to the county clerk.(l) [L. 
1861, p. 230, § 4. 



S. W., J. C. and W. G., justices of the peace, supervisor and town clerk of 
said town, by their warrant of that date, under their hands and seals, ap- 
pointed you to the office of [here insert the title of office] for said town,, 
which warrant has been duly filed in my office. 

Given under my hand, this day of , A. D. 18 — . 

W. G„ Town Clerk. 

(1) Form of Resignation of Town Officer . 

To G. B. and G. F., Esqrs., justices of the peace of the town of , in 

the county of , and State of Illinois : 

By reason of {here state the cause of resignation'] I hereby resign the 
office of commissioner of highways for said town [or as the case may be] r 
and respectfully ask that you may accept my resignation. 

J. B. 
Dated at , this day of , A. D. 18—. 

We, the undersigned, justices of the peace of the said town of 

being satisfied of the sufficiency of the cause shown above, do accept of the 
resignation of the said J. B. 

Witness our hands, this day of , 18—. 

q* -p'' | Justices of the Peace. 

If the resignation of an officer be not accepted, he remains in office. Bouv. Law 
Diet., title "Resignation." 4 Dev. N. C. R., 1. 

An office may "be vacated by abandonment, or resigned by parol, and the ex- 
istence of a vacancy in either case, will depend upon all the facts and circumstances attending 1 
the same. State v. Allen. 21 Ind. R., 516. 

Any voluntary act of an officer, which permanently disables him to perform 
the duties of his office, such as enlistment in the military service of the United States, will 
amount to a constructive resignation of his office by abandonment. State v. Allen, 21 Ind R 
516; Bryan v. Cattell, 15 Iowa R. (7 With.), 538. 

One who has been elected to an office cannot resign it until he has been qualified, and has 
entered into possession of it. Miller v. Board of Supervisors, 25 Cal. R„ 93. 

A county superintendent of schools addressed and presented to the county court of his county 
a paper as follows : 

" The undersigned hereby tenders his resignation as county superintendent of schools." 

This paper was received by the court, and handed to their clerk to be placed on the files of the 
court, and was by him so filed. This was a virtual acceptance of the resignation, which was not 
subject to be revoked by the party presenting it. It was not necessary to enter an order upon 
the records accepting the resignation in form. Pace v. The People ex rel., etc., 50 111. R., 432. 

Althongh the resignation of a town officer is tendered to and accepted by the 

proper authority, he is not relieved from the duties and responsibilities of the office until his 
successor is appointed or chosen and qualified. Badger v. United States, 93 U. S. Rep., 599, (& 
Otto R.). 



92 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

AETICLE XL 

THE SUPERVISOR AND HIS DUTIES. 

Section. 

101. Bond. 

102. Supervisor to receive and pay out moneys. 

103. Supervisor to prosecute for penalties. 

104. Supervisor's accounts'. 

105. His annual settlement. 

106. Certificate of accounts. 

107. Supervisor to attend county board. 

108. To lay accounts before town auditors. 

109. Penalties. 

110. Assistant supervisors. 

111. Supervisors in Cook county. 

101. Bond.] § 1. The supervisor, before entering upon the 
duties of his office, shall give bond to the town, with one or more 
sureties, in at least double the amount of money which may come 
into his hands, conditioned for the faithful discharge of his 
duties as such supervisor, and that he will safely keep and 
pay over all money entrusted to his keeping, as such super- 
visor — such bond to be approved by the town clerk and filed 
in his office with such approval endorsed thereon. When- 
ever the town clerk shall ascertain that such bond has been 
forfeited, he shall institute suit against such supervisor. If the 
clerk shall fail or refuse to institute such suit, any person inter- 
ested therein may institute the same.(l) [L. 1861, p. 230, § 1. 

(1) Form of Supervisor's Bond. 
Know all men by these presents, that we, J. G., A. D. and J. F., of the 

town of , in the county of ,and State of Illinois, are held and firmly 

bound unto the said town of , in the sum of [here insert double the 

amount that may come to his hands], for the payment of which well and 
truly to be made, we bind ourselves, our heirs, executors and adminis- 
trators, and each of them, jointly, severally and firmly, by these presents. 

Sealed with our seals, and dated this day of -, A. D. 18 — . 

The condition of the above obligation is such, that whereas, the above 

bounden J. G. has been chosen supervisor of the said town of for 

the current year, Now, therefore, if the said J. G. shall faithfully dis- 
charge his duties as such supervisor, and shall safely keep and pay over 
all money entrusted to his keeping as such supervisor, then the above 
obligation to be void and of no effect, otherwise to remain in full force 
and effect. 

J. G. [seal.] 
A. D. [seal.] 
J. F. [SEAL.] 

Form of Clerks's Approval to be Indorsed on Supervisor's Bond. 

I approve the within [or above] bond, this day of , A. T>. 18—. 

W. M., Town Clerk. 



ART. XI.] SUPERVISOR AND HIS DUTIES. 93 

102. Supervisor to receive and pay out money.] § 2. The 

supervisor of each town shall receive and pay out all moneys 
raised therein for defraying town charges, except those raised for 
the support of highways and bridges, and he shall, on or before 
the Tuesday next preceding the annual town meeting, prepare and 
file with the town clerk a full statement of the financial affairs of 
the town, showing first, the balance (if any) received by him from 
his predecessor in office, or from any other source ; second, the- 
amount of tax levied the preceding year for the payment of town 
indebtedness and charges ; third, the amount collected and paid 
over to him as supervisor ; fourth, the amount paid out by him, 
and on what account, including any amount paid out on town 
indebtedness, specifying the nature and amount of such indebted- 
ness, and the amount paid thereon, how much on principal and 
how much on interest account ; fifth, the amount and kind of all 

The law provides that all official bonds required by law to be given by any public 
officer or public employe, shall be acknowledged before some officer authorized by law to take 
acknowledgments of instruments under seal, which said acknowledgment shall be substantially 
in the following form : 

Form of Certificate of Acknowledgment of Official Bond. 

State of Illinois, 
County of 

I, , hereby certify that , who are each personally known to 

me to be the same persons whose names are subscribed to the foregoing 
instrument, appeared before me this day in person and acknowledged 
that they signed, sealed and delivered said instrument as their free and 
voluntary act for the uses and purposes therein set forth. 

Given under my hand and seal, this day of , 18 — . 

Which acknowledgment shall be deemed and taken as prima facie evidence that the instrument 
■was signed, sealed and acknowledged in the manner therein set forth, and have the same force 
and effect as evidence in all legal proceedings, as that given to deeds of conveyance of real 
estate. Laws 1879, Bradwell's Ed., p. 162, title "Official Bonds." 

The town cleric being required to approve the bond of the supervisor, he would 
6eem to be the proper person to ascertain and fix the amount to be inserted in the bond. 

A recovery may he had on a bond given for the benefit of the public, although 
jt has not been approved as required by law. People v. Johr, 22 Mich. R., 461. 

The supervisor of a town is not, in the ordinary acceptation of the term, or, in other words, is 
not for all purposes, the agent of the town, and the town is not liable for his errors in judgment 
Davis v. Kalamazoo, 1 Mich. (N. P.) R.. 16. 

Where a supervisor is elected his own successor, and gives a new bond, the sureties 
are liable on such bond for any amount Which appears to have been in the hands of such super- 
visor belonging to the town, at the end of the preceding official term. Morley v. Town of Meta- 
mora, 78 111. R., 394. 

The supervisor occupies the position of a qualified chief executive officer of his 
town, and when called upon as such officer to issue the bonds of the town, under an alleged elec- 
tion and subscription to a railroad company, he has a right to controvert the legality of the de- 
mand and call for a judicial determination of the matter. The People v. Cline, 63 111. R., 394. 

Where, by the statute under which a proceeding is had by a town to raise money for a specific 
purpose by the issuing of its bonds, the supervisor of the town is directed to pay on such bonds, 
in payment of the interest thereon, the money received by him from the county treasurer for that 
purpose ; held, he cannot question the legality of the bonds, and has no discretion in that respect. 
Boss v. Curtis, 31 N. Y. R„ 606. 

In such case he acts as the agent of the town ; and, as sucn agent, he cannot question the au- 
thority of his principal. Id. 

The supervisor of a town has no authority to compromise a claim against his 
town on his own motion. The People v. Cline, 63 111. R., 394. 



94 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

outstanding indebtedness clue and unpaid, and the amount and 
kind of indebtedness not yet due, and when the same will mature. 
It shall be the duty of the town clerk to record the same in the 
record book of the town as soon as filed, and post up a copy of 
the same at the place of holding the annual town meeting two 
days before the meeting is held ; and he shall also read aloud such 
statement to the electors at such meeting. Any supervisor or 
town clerk who shall willfully neglect to comply with the provis- 
ions of this section, shall forfeit and pay to the town the sum of 
not less than fifty nor more than two hundred dollars, to be sued 
for and recovered by said town in its corporate name, and appro- 
priated to repairs of highways and bridges therein.(l) [As 
amended L. 1875, p. 111. 

(1) The supervisor, as custodian of the funds of the town, must pay out the same 
according to law; he is not required, nor permitted, to pay over money in obedience to an illegal 
vote of the town. Towns have no right to give away money collected of the inhabitants by tax- 
ation. Hooper v. Emery, 2 Shep. (Maine) R., 375. 

Township treasurers, under the school law, are held to be insurers of the funds coming to their 
possession, and nothing can relieve them from their obligation to safely keep and pay over such 
funds, but the act of God or of the public enemy. Thompson et al. v. Board of Trustees, etc., 30 111. 
R., 99. And such is doubtless the rule in regard to supervisor, as the custodian of the town funds. 

A township trustee who, by law, was custodian of the town funds, made a contract for the 
township, whereby he became liable, in his official capacity, to pay a certain sum of money. 
He afterwards made payment in goods of his own, or by giving credit on account due him per- 
sonally by the other party, and with his consent, who thereupon released the township. Held, 
that the fact that the trustee retained a corresponding amount of the township funds applicable 
to that purpose, did not constitute a conversion of the funds of the township to his private use, 
or render him liable therefor in a suit on his official bond. State v. Parker, 33 Ind. R., 285. 

The supei visor is authorized to pay out money only on the certificate of the 

town clerk, countersigned by himself. See post, Art. 13, g 10, Amendment to the Township Act. 
The person to whom such certificate is issued should endorse his name thereon which m*ay be 
considered as his receipt for payment of the amount, 

Form of Supervisor's Statement of Financial Affairs of the Town* 

State of Illinois, 

County, 

Town of 

The following is a full statement of the financial affairs of the said town 

of , prepared by A. B., supervisor of said town, for the year ending 

the day of , 18— : 

1st. Amount of balance received from predecessor in office, on 

hand at close of last preceding year $100.00 

Amount received from other sources as follows : 

Amount received from fines due the town 50.00 

2d. The amount of tax levied the preceding year for payment of 

town indebtedness and charges, is 300.00 

3d. The amount collected and paid over to the present supervisor 

' by the town collector, is 100.00 

The amount collected and paid over to the present supervisor 

by the county collector, is 100.00 

Total amount $650.00 

Deduct amount of tax levied preceding year as aforesaid... 300.00 

Leaving total amount received $350.00 



}< 



ART. XI.] SUPERVISOR AND HIS DUTIES. 95 

103. Supervisor to prosecute for penalties.] § 3. He shall 
prosecute in the name of his town or otherwise, as may be neces- 
sary, for all penalties or forfeitures given by law to such town, or 
for its use, and for which no other officer is specially directed to 
prosecute, except as may be otherwise directed by the town meet- 
ing^) [L. 1861, p. 230, § 2. 

104. Supervisor's account.] § 4 He shall keep a just and 
true account of the receipts and expenditures of all moneys which 
shall come into his hands by virtue of his office, in a book to be 
provided for that purpose at the expense of the town ; and said 



4th. The amount paid out by present supervisor, and the account 
on which the same was paid, including amount paid on 
town indebtedness, the nature thereof, amouut of such in- 
debtedness, and amount paid, showing how much on prin- 
cipal and how much on interest account, is as follows : 

Amount paid out on account of fees and compensation of 

town officers $100.00 

Amount paid on account of bonded debt for bond No. 1 100.00 

Amount paid on account of interest on bonded debt 20.00 

Total amount paid out $220.00 

Balance in hands of supervisor . $130.00 

Total $350.00 

Sth. The amount and kind of all outstanding indebtedness of the 
town, due and unpaid, is as follows: 

Amount due on amount audited for building town house $1000.00 

Amount due on compensation of town officers 25.00 

Total indebtedness due and unpaid $1025.00 

To amount and kind of indebtedness not yet due, and time 
the same will mature is as follows : 

Bond No. 2, for bridge purposes, due April 1, 1880 $100.00 

Bond No. 3, for bridge purposes, due April 1, 1881 100.00 

Total indebtedness not yet due $200.00 

Dated •, this — day of , A. D. 18—. 

A. B., Supervisor. 

(1) A supervisor of a town, in discharging his duties as such, acts not in his 
natural, but his official capacity ; and is pro lanto a corporation. He has capacity of suing and 
being sued so tar as his trust is concerned. The right to sue is incident to his office, and passes 
to his successor. If, in a suit brought by or against a supervisor as such, he fails in his action, 
execution goes against him. personally, and his remedy is against the town. So held in New 
York. Janaon v. Odrander, 1 Co wen R., 670. 

Special authority from the electors of a town is not necessary to enable the 
•supervisor to defend a suit against the town, or to take an appeal therein. Homer v. Town of 
Polk, 6 Wis. R., 350. 



96 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



book shall be delivered to his successor in office. (1) [L. 1861, p. 
230, § 3. 

105. His annual settlement.] § 5. On Tuesday preceding the 
annual town meeting, he shall account to the board of auditors 
for all moneys received and disbursed by him in his official capac- 
ity. [L. 1861, p. 230, § 4. 

106. Certificate of his account.] § 6. At every such account- 
ing the justices and town clerk, or a majority of them, shall enter 
a certificate in the supervisor's official book of accounts, show- 
ing the state of his accounts at the date of the certificate.^) [L. 
1861, p. 230, § 5. 

107. Supervisor to attend county board.] § 7. The supervisor 
of each town, except the supervisors of towns in Cook county, 
shall attend all meetings of the county board of the county. (3) 
[L. 1861, p. 231, § 6. 

108. To lay accounts before town auditors.] § 8. He shall re- 
ceive all accounts which may be presented to him against the 
town, and shall lay them before the board of town auditors at or 
before their next meeting. [L. 1861, p. 231, § 7. 



(1) Form of Keeping Supervisor's Book. 

M. L., supervisor of the town of , in account with said town 

Dr. Cb. 



DATE. 




$ 


CTS. 


DATE. 


No.ofCer. 




• 


CTS. 


18- 

Feb.l 


To am't rec'd of col- 
lector of the town. 


150 


50 


18— 
Jan'y 1 

April 1 


100 
101 


By am't paid for super- 
visors' book 

By amount paid on ac- 
count of 


5 

5 


00 
00 



(2) Form of Certificate of Justices of the Peace and Town Clerk, to be 
Entered in Supervisor's Book Upon Examination of His Accounts. 



County, 



Town of — 



|ss. 



We, the undersigned, the justices of the peace and town clerk of the 

said town of , do hereby certify that we have this day examined the 

foregoing account [the certificate being entered at the close of the account 
at every such accounting] of M. L., supervisor of said town, and that we 
find the same in all respects correct and true, and that there appears at 

this date to be a balance of dollars and cents in the hands of 

said supervisor. 

Witness our hands, this day of March, A. D. 18—. 

H L ' \ J us t ices of the Peace. 
F.°B.,Town Clerk. 

(3) In regard to Cook county, the Constitution, Art. X., Sec. 7, provides as follows ; 
" The county affairs of Cook county shall he managed hy a board of commissioner of fifteen 
persons, ten of whom shall be elected from the city of Chicago, and five from the towns outside 
of said city, in such manner as may be provided by law." 



ART. XII.] TOWS CLERK AND HIS DUTIES. 97 



109. Penalty.] § 9. If any supervisor shall refuse, or shall 
willfully neglect to perform any of the duties of his office con- 
tained in the preceding sections of this article, he shall forfeit to 
the town the sum of $50, and be disqualified to act as the super- 
visor of said town. [L. 1861, p. 231, § 9. 

110. Assistant supervisors.] § 10. Assistant supervisors shall 
have no power or duties as town officers, but shall be members of 
the county board of their respective counties, and shall have and 
enjoy the same powers and rights as other members. [L. 1861, 
p. 231, § 10. 

111. Supervisors in Cook county.] § 11. The supervisors of 
towns in Cook county shall perform the same duties as supervisors 
of towns in other counties under township organization, except 
that they shall not be members of the county board, or exercise 
any of the powers thereof. They shall have the same compensa- 
tion for their services as is or may be prescribed by law for simi- 
lar services rendered by other supervisors of towns. 

AETICLE Xn. 

THE TOWN CLERK AND HIS DUTIES. 

Section. 

112. Records, etc. — Oaths. 

113. Records of town meeting. 

114. Certificates of votes to raise money. 

115. Certificate of tax required. 

116. Failure to return certificate. 

117. Copies — Evidence. 

112. Records, etc.— Oaths.] § 1. The town clerk shall have 
the custody of all records, books and papers of the town, and he 
shall duly file all certificates or oaths and other papers required 
by*law to be filed in his office. He is authorized to administer 
oaths and take affidavits in all cases required by law to be admin- 
istered or taken by town officers. (1) [L. 1861, p. 231, § 1 ; L, 1867, 
p. 173, § 2 ; L. 1869, p. 407, § 1. 

(1) When the town cleric tiles a paper in his office he should make an entry thereof 
upon it, with the date of filing, in the following form : 

Form of Entry of Filing Paper by Town Clerk. 
Filed this day of , A. D. 18—. J. J., Town Clerk. 

Where a town cleric is reqnired hy law to perform a mere ministerial act, as the 
countersigning of bonds issued on a subscription to the stock of a railroad company, it is not his 
province, when called upon to do the act, to determine whether the proper steps have been 
taken to authorize the issuance of the bonds. The law provides another mode in which that 
question could be properly determined (citing The People v. Dean, 3 Wend., 43S). Houston v. "J he 
People ex rel., etc., 55 111. R., 398. This case is not in harmony, however, with the ruling in the 
case of The People ex rel. Stine v. The Board of Supervisors of Vermilion Co., 47 111. E,., 256. 



98 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

113. Records of town meetings.] § 2. He shall record in the 
book of records of his town the minutes of the proceedings of 
every town meeting held therein, and shall enter in said book 
©very order or direction, and all by-laws, rules and regulations 
made by any town meeting. (1) [L. 1861, p. 231, § 2. 

114. Certificates of votes to raise money.] § 3. He shall 
deliver to the supervisor, before the annual meeting of the 
county board of the county, in each year, certified copies of all 
entries of votes for raising money, made since the last annual 
meeting of the county board.(2) [L. 1861, p. 231, § 3. 

115. Certificate of tax required.] § 4 He shall, annually, at 
the time required by law, certify to the county clerk the amount 
of taxes required to be raised for all town purposes. (3) 

116. Failure to return.] § 5. If any town clerk shall willfully 
omit to make such return, he shall be fined, for each offense, not 
exceeding $10. 

117. Copies— Evidence.] § 6. Copies of all papers, duly filed 
in the office of the town clerk, and transcripts from the town 
records certified by him, shall be evidence in all courts with like 
effect as if- the originals were produced. (4) L. 1861, p. 231, § 6. 

(1) It is cpmpctent for one chosen town clerk to make a record of his own 

election and qualification. Briggs v. Murdoch, 13 Pick. R., 305. 

Tlie »y-laws or ordinances of a town, printed and pasted into the regular 
record book for containing the same, are admissible in evidence, as being duly recorded. Ew- 
banks v. Town of Ashley, 36 111. R., 177. 

(2) Form of 'Certificate of Town Clerk to Aeeompany Book of Entry of 

Votes for Baising Money, Recorded in Town Book. 
County, { 

Town of / ss * 

I do hereby certify that the foregoing are true copies of entries of votes 

of the electors of the town of , at town meeting, for raising money 

made since the last annual meeting of the county board, and recorded in 
the town record of said town. 

Witness my hand this day of , A. D. 18 — . 

W. L. t Town Clerk. 

(3) See post, Div. " Revenue," § 122. 

(4) Form of Certificate of Town Clerk to Copies of Papers and Records. 
County, I 

Town of — f ss - 

I, J. M., town clerk of said town of , do hereby certify that the 

foregoing [or within] is a true and correct copy of the original thereof on 
file in my office [or is a true and correct transcript from the original book 
of records of said town, wherein is contained the entry of records of all 
such matters.] 

In witness whereof I have hereunto set my hand and seal this day 

of , A. D. 18—. 

J. M., Town Clerk, [seal.] 

See Rev. Stat., " Evidence and Depositions," ch. 51, 1 14, 16 



ABT. Xin.] BOAED OF TOWN AUDITORS. 99 

AETICLE XIII. 

THE BOAED OF TOWN AUDITORS. 

Section. 

118. Who constitute. 

119. Absences supplied. 

120. Semi-annual meeting. 

121. Accounts audited. 

122. Accounts filed with town clerk— Read at town meeting. 

123. Account verified. 

• 124. Certificate of audit— Tax. 

125. Town charges. 

126. How taxes raised. 

126a. Duty of town clerk— Record. 

118. Who constitute.] §1. In each town the supervisor, town 
«jlerk and justices of the peace of the town shall constitute a 
board of auditors ; said board shall consist of no less than three 
persons, and each person shall cast but one vote.(l) [L. 1861, p. 
232, § 1. 

119. Absences Supplied.] § 2. In case of the absence of any 
or either of the said officers, or their failure to attend any meet- 
ing of the board, those attending may associate with them the 
collector or assessor of the town, or both, in the place of any 
absentee or absentees, as the case may be, who shall act for the 
time being as members of such board. (2) [L. 1861, p. 232, § 2. 

120. Semi-annual meeting.] § 3. Said board of auditors shall 
meet at the town clerk's office for the purpose of examining and 
-auditing the town accounts, semi-annually, on the Tuesday next 
preceding the annual meeting of the county board, and on the 
Tuesday next preceding the annual town meeting. [L. 1861, p. 
232, § 3. 

121. Auditing accounts.] § 4. The board of auditors shall, at 

(1) Each justice of the peace of the township is a member of the board of town audit- 
ors. The number of justices who shall be town auditors of a town is not limited; but the 
law includes them all, whatever may be the number allowed in the township. Opinion Att'y 
Gen'l Edsall, Aug. 13, 1873. This is not intended to include police magistrates. 

When all the officers forming the hoard of town auditors have met, a majority 
of them may decide upon questions coming before them, and their certificate will be valid, al- 
though the supervisor has refused to sign it. Onderdonk v. Supervisor, 1 Hill R., 195. 

The supervisor, town cleric or justice of the peace, although his resignation is ten- 
dered to and accepted by the proper authority, continues in office, and is not relieved from his 
duties and responsibilities as a member of the board of auditors, under the township organiza- 
tion laws of the State of Illinois until his successor is appointed or chosen and qualified. Bad- 
ger v. United States, 93 U. S., (3 Otto R.), 599. 

Under the act concerning Canada thistles, town auditors have authority to appoint 
■commissioners of Canada thistles. See post, " Canada Thistles." 

(2» It will he ohserved that any three of the officers named in the first section of this 
article may comprise the board of town auditors; it three of these are present, there would 
seem to be no necessity for associating the collector or assessor in order to constitute a compe- 
tent board. 



100 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

the same time and place as stated in section 3, examine the ac- 
counts of the supervisor, overseer of the poor, (where the town 
sustains its poor,) and the commissioners of highways of such 
town, for all moneys received and disbursed by them, and shall 
also examine and audit all charges and claims against their town,, 
and the compensation of all town officers, except the compensa- 
tion of supervisors for county services.(l) [L. 1861, p. 232, § 1, 5. 

122. Accounts filed with town clerk, etc.] § 5. The accounts 
so audited, and those rejected, if any, shall be delivered, with the 
certificate of the auditors, or a majority of them, to the town 
clerk, to be by him kept on file for the inspection of any of the in- 
habitants of the town. They shall also be produced by the town 
clerk at the next annual meeting, and shall be there read by him. 
[L. 1861, p. 232, § 4 

123. Accounts verified.] § 6. The board of auditors may re- 
quire any account presented to be verified by affidavit, setting 
forth that the same is correct and just, and is unpaid, or, if any 
part thereof has been paid, setting forth how much.(2) [L. 1861, 
p. 232, § 6. 

(1) The auditors of town accounts may l>e compelled by mandamus to audit the 
amount allowed for damages by taking land for a highway, although the party may have a 
remedy by action against the town. Van Vleit ex rel., etc. v. Wilson el al., 17 Wis. R., 687. And 
compelled by mandamus to perform any ministerial duty which the law imposes they may be 
upon them.' Carpenter, ex rel, etc. v. Supervisor of Town of Beloit, 20 Wis. R., 79. 

It is held (Supervisors v. Ottawa, 12 111. R., 480), that the board of supervisors in such counties 
as have adopted township organization are required to provide for the support of the paupers of 
the county, and that there is no foundation for a distinction between county and town paupers. 
The section of this act, therefore, providing for the account of overseer of the poor, will not 
apply except in those counties where the town support their own poor. 

A judgment against a town is a town charge, and the board of auditors have no dis- 
cretion or power to refuse to audit a valid judgment against a town. Boards of town auditors 
have no power to pass in review upon a judgment recovered against a town upon the solemn 
adjudication of a court. A town cannot in a collateral proceeding go behind the judgment of a 
court, to question the sufficiency of the cause of the action upon which it was predicated. Town 
of Lyons v. Cooledge, Sup. Ct., 111. Jan'y, 1879. 

(2) Form of Bill Against Town and Affidavit of Correctness. 

Town of . 

To A. J. Dr. 

18 — . March 20. To services as supervisor, one day out of town 
in attending to prosecution of suit in favor of said town against C. 

D., pending in the ■ county circuit court, $2.50 

A. J. 
State of Illinois ) aa 

County. S 

A. J., being duly sworn, doth depose and say that the foregoing [or an- 
nexed] bill for two dollars and fifty cents by him rendered against the 

town of , in said county for services rendered as therein stated, i& 

correct and just and is unpaid. A. J. 

Subscribed and sworn to before me, this ) 

day of , A. D. 18—. \ 

J. I)., Justice of the Peace. J 

Where any part of a bill has previously been allowed and paid, credit therefor should begive» 

on the bill, and the fact stated in the affidavit. 



AET. XIH.] BOARD OF TOWN AUDITORS. 101 

124. Certificate of audit— Tax.] § 7. The board shall make a 
certificate, to be signed by a majority of said board, specifying 
the nature of the claim or demand, and to whom the amount is 
allowed, and shall cause such certificate to be delivered to the 
town clerk of said town, to be by him kept on file for the inspec- 
tion of any of the inhabitants of said town ; and the aggregate 
amount thereof shall be certified to the county clerk at the same 
time and in the same manner as other amounts required to be 
raised for town purposes, which shall be levied and collected as 
other town taxes, except that in towns mentioned in section four 
(4), article 4, of this act, the amount shall be certified to the 
county board, who shall include the same in their estimate of the 
town expenses. (1) [L. 1861, p. 232, § 7. 

125. Town charges.] § 8. The following shall be deemed 
town charges : 

1. The compensation of town officers for services rendered 
their respective towns. 

(l)Form of Certificate of Auditors Allowing Claims Against a Town, with 
Nature of Demand, and to Whom the Amount is Allowed. 

State of Illinois, 

County, [■ ss. board of town auditors. 

Town of 



', Us. 



We, the undersigned, comprising the board of town auditors of said 

town of , having duly met at the town clerk's office, on the day 

of , 18 — , for the purpose of auditing town accounts, do hereby cer- 
tify that the following claims or demands against said town were pre- 
sented, and being examined, were allowed at said meeting, to-wit: 



TO WHOM ALLOWED. 


NATURE OF CLAIM. 


AMOUNT. 


Joseph Jenkins, 
John Jackson, 
James Jones. 


Compensation as supervisor, 
Compensation as town clerk, 
Goods for pauper, 


25 00 
25 00 
10 00 



In witness whereof the members of said board of town auditors have 

hereunto set their hands, this day of , 18—. 

A. B., Supervisor. 
C. D., Town Clerk. 
E. F., ) Justices of the 
G. H., > Peace. 

The certificate of town auditors is conclusive upon the board of supervisors ; it is 
held in New York that they are precluded from going behind it to inquire as to tlie merits of the 
particular items allowed, but are bound to act upon the amount audited without modification; 
and that a certificate of town auditors purporting in the body of it to have been made by "the 
board of auditors of the town of N. H.," is sufficient, though the officers have merely signed 
their names without adding their official titles, and that it need not appear upon the face of the 
certificate that the auditors met at the proper time and place. It will suffice it in point of fact 
their meeting was regular in those respects. Onderdonk v. Queen's Co., 1 Hill B.., 195. 

The certificate of the town auditors, regular on its face, allowing accounts, is suf- 
ficient authority for the board of supervisors to levy the amount certified on the town. People 
V. Supervisors of Queen's Co.. 1 Hill R., (N. Y.,) 195. 



102 TOWNSHIP ORGANIZATION ACT. [DIY. t 

2. Contingent expenses necessarily incurred for the use and 
benefit of the town. 

3. The moneys authorized to be raised by the vote of a town 
meeting, for any town purposes.(l) 

4. Every sum directed by law to be raised for any town pur- 
pose. [L. 1861, p. 233, § 8. 

126. How taxes raised.] § 9. The moneys necessary to defray 
the town charges of each town shall be levied on the taxable 
property in such town in the manner prescribed in the act for 
raising revenue and other moneys for state and county purposes, 
and expenses.(2) L. 1861, p. 233, § 9. 

126a. Duty of town clerk— Record.] § 10. The town clerk 
shall act as clerk of the board of town auditors, and shall record 
the proceedings of each meeting of the board in a book which 
he shall provide for that purpose at the expense of the town. Such 
record shall include all certificates of accounts audited by the 
board. Accounts so audited shall be paid by the supervisor on 
presentation of a certificate of the town clerk, stating the amount 
and to whom allowed, the date when audited and on what ac- 
count ; which certificate, before payment of the amount, shall be 
countersigned by the supervisor." (3) [Act approved May 29 y 
1879. 

Form of Town Clerk's Certificate to County Clerk of Aggregate Amount 
of Town Accounts Audited, 

County, \ 

Town of ,/ ss * 

To the county clerk of said county : 

I, A. B., town clerk of said town of , do hereby certify that the 

aggregate amount of accounts audited against said town by the board of 
town auditors thereof, at their meeting held at the town clerk's office on 

the day of , 18 — , is dollars and cents, as appear* 

by the certificate of said board duly delivered to me and remaining on 
file in my office. 

In witness whereof I have hereunto set my hand this day of , 

18—. 

A. B., Town Clerk. 

(1) The expense of building a town house for holding town meetings, and for other 
town purposes, is a town charge. Town of Beaver Lam v. Frings, 17 Wis. R. 379 ; Kempton v. 
Stetson, 13 Mass. R., 271. 

(2) See Div. " Revenue," \\ 121-127, post. 

(3) The certificate provided in the above section is in the nature of negotiable pa- 
per when countersigned by the supervisor, if issued for an amount properly audited ; it will be 
good in the hands of the payee or the holder thereof when endorsed by the payee, for the- 
amount therein expressed. Emery v. MariavUle, 56 Maine R., 315. But the town would not be 
liable thereon until after demand and relusal of payment. Packard v. Bovina, 24 Wis. R., 382. 

Town orders are not commercial paper in the hands of bona fide indorsers for value, 
so as to exclude evidence as to the legality of their inception, and they are subject to any legal 
defense; such as want of authority in the drawers or acceptors, whose agency is a fact to be 
proved. Sturtevant v. Liberty, 46 Maine R., 457. 

The following may be the form of the town clerk's certificate of an amount audited •. 



AET. XIV.] BOAKD OF HEALTH. 103 



AKTICLE XIY. 

BOABD OF HEALTH. 

• Section. 

127. Members — Powers. 

128. Record— Report. 

129. Compensation. 

127. Who constitute— Powers.] § 1. The supervisors, asses- 
sor and town clerk of every town shall constitute a board of health, 
and on the breaking out of any contagious disease in their town or 
immediate vicinity, they shall have power to make and enforce any 
rules and regulations tending to check the spreading of such dis- 
ease within the limits of such town, as they may think proper : 
and for this purpose they shall have power to shut up any house 
or place where any infected persons may be, and cause notices 
of warning to be put thereon, or remove such person to any pest 
house within the limits of said town, at the expense of the party so 
moved, if he be of sufficient ability to pay, or otherwise at the ex- 
pense of said town : Provided, that nothing in this section shall 
apply to any town, or any part thereof, lying within the corporate 
limits of any incorporated city or village.(l) [L. 1865, p. 75, § 1. 

128. Record— Report] § 2. The town clerk shall keep a full 
record of all the doings of said board, and report the same to the 
annual meeting of such town.(2) [L. 1865, p. 76, § 2. 

Form of Town Clerk's Certificate of Claim Audited. 

$ . No. -. 

State of Illinois, 

County, [-ss. town clerk's office, , 18— 

Town of 



'■■\ 



This is to certify, that the sum of dollars and — cents will be 

paid by the supervisor of said town, to — or order, on presentation of 

this certificate ; which amount was allowed to him and audited on the 

day of , 18 — , by the town auditors of said town, on account of . 

Countersigned, 

C. D., Supervisor. A. B., Town Clerk. 

(1) A board of health lias »o power to take and occupy premises as a pest house with- 
out the owner's consent. Boom v. City of Utica, 2 Barb. R., 104. 

Where the inhabitants of a town, are exposed to small pox, field, in Vermont, 
that the authorities of the town, acting as a board oi health, may take measures for its preven- 
tion by inoculation, and the town may legally vote a tax to defray the expense. Hazen v. Strong 
2 Vt. R., 427. 

Powers conferred on a hoard of health should receive a liberal construction, for the 
advancement of the ends for which they are bestowed. Gregory v. New York, 40 N. Y. R., 273. 

(2) The rales, regulations and all doings of the hoard of health should be re- 
duced to writing. It is held in New York that parol evidence of the orders of the board of health 
is inadmissible Their determinations are judicial, and must be in writing. Meeker v. VanRanss- 
laer, 15 Wend. R., 397. 



104 TOWNSHIP ORGANIZATION ACT. [dIY, L 

129. Compensation.] § 3. The members of said board shall be 
allowed for their time spent in the performance of their said duties 
each the sum of $1.50 per day, which, together with all bills by 
them contracted, and all sums of money by them expended, shall 
be audited by the board of auditors of such town, and be paid in 
the same manner as other town expenses. [L. 1865, p. 76, § 2. 

AETICLE XV. 

THE COMPENSATION OF TOWN OFFICERS. 

Section. 

130. Fees. 

1. Of town clerk and supervisor. 

2. Of poundmaster. 

3. Of members of board of appointment. 

4. No fees allowed for administering oath of office. 

131. Emergency. 

130. Fees.] § 1. The following town officers shall be entitled 
to compensation at the following rates for each day necessarily 
devoted by them to the service of the town in the duties of their 
respective ofiices.(l) 

(1) The fees and compensation of the town clerk, supervisor, overseer of the 
poor, pound master, board of appointment and town collector, is also fixed by Chapter 53 of the 
Revised Statutes, entitled, "Fees and Salaries," g 36 which provides as follows: 

FEES AND COMPENSATION OF TOWN OFFICEES. 

§ 36. The following named town officers shall toe entitled to compensation at 
the following rates, for each day necessarily devoted by them to the services of the town, in the 
duties of their respective offices : 

The town cleric, supervisor and overseer of the poor, shall receive for their 
services two dollars per day, when attending to town business out of town ; one dollar for town 
business in their town : Provided, that the town clerk shall receive fees for the following, and 
not a per diem : 

For serving notices of election upon town officers, as required by law, twenty-five cents each ; 
for filing any paper, required by law to be filed in his office, five cents each ; for posting up 
notices, required by law, twenty-five cents each ; for recording any order or instrument of writ- 
ing, authorized by law, six cents for each one hundred words ; for copying any record in his 
office, and certifying to the same, six cents for every one hundred words, to be paid by the per- 
son applying for the same ; for copying by-laws for posting or publication, six cents for each one 
hundred words, to be paid for by the town. The town assessor shall receive for his services as 
assessor, two dollars and fifty cents per day: Provided, that in towns of fifty thousand inhabi- 
tants and upwards, in counties of the third, class, the assessor shall receive five dollars per day. 
[See " Revenue," § 93. 

The pound master shall be allowed the following fees for his services, to-wit: 

For taking into the pound and discharging therefrom every horse, ass, or mule, and all neat 
cattle, ten cents each ; for every sheep or lamb, three cents each; and for every hog, large or 
small, five cents each. 

The officers composing the board of appointment in case of vacancy, when they shall meet for 
that purpose, and the officers composing the board of town auditors, shall be each entitled to 
one dollar a day for their services. 

No justice of the peace or town officer shall be entitled to any fee or compensation, from any 
individual elected or chosen to a town office, for administering to him the oath of office. 

Each town or district collector shall be allowed a commission of two per cent, on all moneys 
collected by him, to be paid out of the respective funds collected: Provided, that in any case 
where the compensation so allowed shall be insufficient, the town or county board may allow an 
additional compensation or per diem in lieu of other or greater commissions, in which case said 
additional compensation shall be paid out of the town or county treasury, as the case may re- 
quire : And, provided further, thai all excess of commissions and fees over fifteen hundred dol- 
lars shall be paid into the town or district treasury. 



ART. XV.] COMPENSATION OF TOWN OFFICERS. 105 

1. The town clerk and supervisor shall receive for their servi- 
ces two and a half dollars per day when attending to town busi- 
ness out of town ; one dollar and fifty cents for town business in 
their town :(1) Provided, that thfe town clerk shall receive fees, and 
not a per diem, for the following services : 

For serving notices of election upon town officers, as required 
by law, twenty-five cents each. 

For filing any paper required by law to be filed in his office, ten 
cents each.(2) 

For posting up notices required by law, twenty-five cents each. 

For recording any order or instrument of writing authorized by 
law, eight cents for each one hundred words. 

For copying any record in his office and certifying to the same, 
eight cents for every one hundred words, to be paid by the person 
applying for the same. 

For copying by-laws for posting or publication, eight cents for 
-each one hundred words, to be paid by the town.(3) 

The town assessor shall receive for his services as assessor 
two and a half dollars per day. (4) 

2. The pound master shall be allowed the following fees for his 
services, to-wit: 

For taking into the pound and discharging therefrom horses, 
asses, mules and neat cattle, ten cents each ; sheep or lambs, three 
cents each ; and swine, large or small, five cents each. 

He may also be allowed to receive his reasonable charges for 



The compensation of commissioners of highways is provided, by the road. law. See 
post, Div. "Roads and Bridges," § 117. 

Public officers take their offices with their burdens, as well as advantages, and 
cervices required of them by law, for which no pay is specially provided, must be considered as 
■compensated by the fees allowed for other services. Miami v. Blake, 21 Ind. R., 32. 

But when the law requires the services of an Individual in a special capacity, 
.as secretary of a board of commissioners, or clerk of a town meeting, but makes no provision for 
his compensation, he is entitled to reasonable compensation. Territory v. Norris, 1 Oregon R., 107. 

And this would apply to a moderater of a town meeting, who, in the absence of 
any express provision to pay, would be entitled to reasonable compensation, and this may be 
regulated by that allowed to other town officers for similar services, as that of town clerk for 
, s ervices as clerk of a town meeting. 

(1) The fees of a supervisor for doing business outside of and in the town, for the 
town, is a town charge, with which the county has nothing to do. But the supervisor is entitled 
to $2.50 per day, and 5 cents mileage each way for attending the board of supervisors, and this is 
to be paid out of the county treasury. Opinion Att'y Gen'l Edsall, March 31st, 1873. 

(2) A town clerk is not required by the revenue law to file tax lists, and therefore 
•can recover no recompense for filing them. Charleston v. McCrory, 36 111. R., 456. 

(3) A clerk is not obliged to deliver a copy of a record in his office until his fees for 
making the same are paid. The People ex rel. v. Rockwell, 2 Scam. R., 3. - 

Clerks have a right to insist on the payment of their tees where the service is 
rendered for individuals, at the time the service is performed. The People v. Harlow, 29 111. R., 43. 

,{4) The pay of assessor is also provided by the revenue act See post, " Revenue," g 93. 



106 TOWNSHIP OKGANIZATION ACT. [DIV. I_ 

the keeping of such animals. The amount which he shall charge- 
therefor may be regulated by the town meeting. 

3. The officers composing the Board of Appointment in case of 
vacancy, when they shall meet for that purpose, and the officers 
composing the Board of Town Auditors, shall each be entitled to 
one dollar and fifty cents a day for their services. 

4. No justice of the peace or town officer shall be entitled to 
any fee or compensation from any individual elected or appointed 
to a town office, for administering to him the oath of office. (See- 
Eev. Stat., "Fees and Salaries, ' ch. 53, § 36. L. 1861, p. 238, § 
1, 2, 3, 4, 5. 

131. Emergency,] § 2. Whereas the constitution requires that 
the day of holding the annual township meeting shall be uniform 
throughout the state ; and whereas, in the county of Cook, the day 
of election, as fixed by law, is not the same as that in the majority 
of the counties in this state, and there is doubt whether any elec- 
tion can legally be held in such county for town officers, an emer- 
gency exists that this act shall take immediate effect : therefore, 
this act shall take effect and be in force from and after its passage* 

CITIES OEGANIZED AS TOWNS IN CERTAIN CASES. 

AN ACT to authorize County Boards in Counties under Township Organization to organize cer- 
tain territory situated therein as a Town. [Approved May 23, 1877. In 
force July 1, 1877.J 

SECTION. 

1. Territory in city organized as town. 

2. Town in city. 

3. Election of officers. 

4. Powers exercised by council. 

5. What city council may provide. 

6. May regulate the number of justices. 

7. Vacancies. 

1. Territory of city organized as town.] § 1. That the county 
board, in any county under township organization, may provide 
that the territory embraced within any city in such county shall 
be organized as a town : Provided, such territory shall have a 
population of not less than three thousand. And, provided, the 
city council in such city shall by resolution request such action by 
the county board. 

2. Town in city.] § 2. The territory of any city now organ- 
ized, within the limits of any county under township organization, 
and not situated within any town, shall be deemed to be a town. 

3. Election of officers.] § 3. All town officers within any town 
organized as aforesaid shall be elected at the annual charter elec- 



DIV. I.] ESTBAYS. 107 

tion of such city. All general elections held in such city and 
town shall be held at the same voting places as the city elections, 
with judges and clerks appointed in like manner as for the city 
elections. 

4. Powers exercised by council.] § 4. The powers vested in 
said towns shall be exercised by the city council. 

5. What city council may provide.] § 5. The city council in 
such city and town may by ordinance provide that the offices of 
city and town clerk shall be united in the same person ; that the 
election of highway commissioners shall be discontinued ; that 
the offices of supervisor and poormaster shall be separated and 
the poormaster appointed by the city council. 

6. May regulate the number of justices.] § 6. The city 
council in such city and town may from time to time regulate the 
number of justices of the peace, police magistrates and constables 
to be elected within such city and town ; but the number elected 
to either of such offices shall not exceed the number allowed by 
law to other towns of like population. 

7. Vacancy.] § 7. Vacancies in any of the town offices within 
such city and town may be filled by the city council. 



ESTEAYS. 

Part of the ACT to revise the law in regard to estrays and other lost property. [Approved March 
23, 1874. In force July 1, 1874. Rev. Stat., ch. 50.] 

Section. 

1. When estrays may be taken. 

2. Who may take up estrays. 

3. Not to use before advertising, except, etc. 

4. Several estrays. 

5. Notice of taking up. 

6. Recording notice with town clerk. 

1. When estrays may be taken up.] § 1. That horses, mules, 
asses, neat cattle, swine, sheep or goats found straying at any time 
during the year in counties where such animals are not allowed 
to run at large, or between the last day of October and the fif- 
teenth day of April in other counties, the owner thereof being 
unknown, may be taken up as estrays. [R. S. 1845, p. 228, § 6. 
L. 1847, p. 47, § 1. 

2. Who may not take up estrays.] § 2. No person who is not 
a householder in the county where the estray is found, shall take 
up such estray, and no person shall be allowed to take up any es- 
tray except upon or about his farm or place of residence. [H 
1847, p. 47, § 2. 



108 TOWNSHIP OKGANIZATTON. [DIY. I. 

3. Not to use before advertising — Milk] § 3. No person tak- 
ing up an estray shall use the same previous to advertising it ; 
but animals giving milk may be milked for their benefit. [B. S. 
1845, p. 228, § 9. 

4. Several estrays.] § 4. Where several estrays are taken up 
by the same person, they shall be included in the same notices 
and proceedings. [E. S. 1845, p. ^28, § 5. 

5. Notice of taking up.] § 5. Whoever takes up or has at any 
time upon his inclosed lands an estray, shall, within five days 
thereafter, post up notices in three of the most public places in 
the town or precinct in which the estray was taken up or found, 
giving the residence of the taker-up and a particular description 
of such estray, its age, color and marks, natural and artificial, as 
near as may be, and stating before what justice of the peace in 
such town or precinct, and at what time, not less than ten nor 
more than fifteen days from the time of posting such notice, he 
will apply to have the estray appraised. [E. S. 1845, p. 227, § 1. 

6. Recording notice with town clerk.] § 6. In counties under 
township organization, the taker-up shall also, within the same 
time, deliver a copy of such notice to the town clerk of his town, 
who shall enter the same at large in a book to be kept for that 
purpose, to be known as the " Town Estray Book," noting in said 
book the time when the notice is delivered to him,(l) 

(1) Form of Notice of Taking up Estray by Householder. 

ESTRAY NOTICE. 

Notice is hereby given that the subscriber, a householder in the county 

of , State of Illinois, who resides at [give locality of residence with 

reasonable certainty], in the town of , in said county, did on the 

■day of , 18—, take up, upon his farm [or at his place of residence], 

in said town, one estray cow [or as the case may be], of the following de- 
scription : [give particular description — age, color and marks, natural 

and artificial, as near as may be], and that the subscriber will, on the 

day of , 18—, at the hour of — o'clock, — M., apply to L. M., Esq., a 

Justice of the peace in said town of , at his office therein, to have the 

said estray appraised. 

Dated this day of , 18—. 

A. B. 

A complete copy of the foregoing notice should be entered by the town clerk in the 
town estray book. 

The following may be the form of the town clerk's entry in the estray book, noting the time of 
delivery of estray notice: 

Form of Town Clerk's Entry in Estray Book, Noting Delivery of Estray 

Notice. 
The foregoing notice was delivered to me, C. D., town clerk of the town 

of , the day of , 18—. 

C. D., 
Town Clerk. 

The foregoing form of entry is designed to be made immediately following the entry of 
the estray notice. 



DIV. L] CANADA THISTUES. 109 



CANADA THISTLES. 

Section. 

1. Commissioner of Canada thistles. 

2. Duties of commissioner. 

3. Treatment of thistles on enclosed lands— Appeal, etc. 

4. Further treatment. 

5. Prosecutions. 

6. Report of commissioner. 

7. Accounts audited. 

8. Appropriations — Control by county board. 

9. Emergency. 

AN ACT concerning Canada thistles. [Approved and in force March 15, 1872. L. 1871-2, p. 220, 

Rev. Stat., ch. 18.] 

1. Commissioner of Canada thistles.] § 1. There may be 
appointed by the board of town auditors in counties under town- 
ship organization, and by the county commissioners in counties 
not under township organization, for each township or election 
precinct, and by the city council of any city, or by the president 
and trustees of any town or village, as the case may be, some 
competent person, to be styled "Commissioner of Canada This- 
tles," who shall take the oath required of township or precinct 
officers, and shall hold his office for the term of three years, and 
until his successor is appointed and qualified ; and he shall receive 
for his compensation the sum of two dollars a day, for each full 
day necessarily spent in the performance of his duty, to be verified 
by affidavit. The board of appointment may, at any time, for 
good cause, remove the commissioner from office, and appoint 
his successor, to serve the remaining portion of his time. 

2. Duties of Commissioner.] § 2. The commissioner of Can- 
ada thistles shall diligently inquire concerning the introduction 
and existence of Canada thistles in his township or precinct, and 
if any are found growing therein, he shall take charge of all such 
growing in the highway and on uninclosed lands, and take care 
that they do not go to seed, or otherwise spread ; and he shall 
carefully seek and learn, so far as practicable, the best methods 
for their destruction, and he shall persistently apply, in proper 
time, such remedy or treatment as he shall deem best calculated 
to prevent their spread and to eradicate the same. 

3. Treatment of thistles on inclosed lands— appeal, etc. § 3. 

In case said thistles are found growing on inclosed lands, the 
commissioner shall advise with the owner, agent or occupant on 
their treatment, and if the said commissioner shall deem it 
necessary and expedient for him to fully control the same, he shall 
agree with the owner, agent or occupant on the boundaries of the 



110 TOWNSHIP ORGANIZATION. [DIV. I. 

tract so infected which it is expedient for him to control, and he 
shall mark the same b y stakes, or b j fence, if thought best ; and 
thereafter such infected tract, or so much as from time to time 
remains infected, shall be managed and controlled by the said ' 
-commissioner, for the purpose of destroying the said thistles, and 
so long as it may be necessary to complete the work. In case the 
■commissioner and the owner, agent or occupant of the land can- 
not agree, as regards the propriety of the commissioner con- 
trolling such tract, or of the boundaries of the same, then the 
commissioner shall proceed to stake out or mark such boundaries 
as he deems proper, and file a copy of his decision with the town 
clerk, or, in counties not under township organization, with the 
county clerk. The owner, agent or occupant of the land may, if 
he feels aggrieved, appeal from such decision of the commissioner, 
without bonds, within twenty days, to the commissioners of high- 
ways of the town, or to the county commissioners, as the case 
may be, who shall proceed to view the same, and to hear the 
reasons for and against the decision of the commissioner; and a 
majority of such board of appeal shall decide as to the propriety 
of taking possession of the tract alleged to be infected, and if 
they decide to take such possession, what shall constitute the 
"boundaries of the same, and shall direct said commissioner to 
•exterminate said thistles, (which are hereby declared a public 
nuisance',) without unnecessarily depriving the owner of the land 
of any legitimate use and enjoyment of the same.(l) [See Rev. 
Stat., Crim. Code, ch. 38, § 40. 

4. Further treatment] § 4. The commissioner shall apply 
the best known means, and use the utmost diligence, in eradi- 
cating the thistles; but he shall not have power to expend in 
work or materials more than $100 on any one infected tract, 
without the advice and consent, in writing, of the supervisor of 
the town, or of the county commissioners, as the case may be. 



(1) Appeal from Decision of Commissioner of Canada Thistles. 
To I. B., I. J. and D. I., Commissioners of Highways of the Town of- 



in the County of [or County Commissioners, as the casemay be]. 

The undersigned, A. B., owner [or agent, or occupant, as the case may 
be] of the hereinafter described premises, feeling himself aggrieved by the 
decision of the commissioner of Canada thistles, filed with the town clerk 

[or with the county clerk, as the case may be], on the day of , 

A. D. 18—, does hereby appeal to and submit the matter in controversy to 
your honorable body according to the statute in such cases made and pro- 
vided. 

The grounds upon which this appeal is made are [here briefly state the 
grounds of appeal and description of land]. 
Dated this day of , A. D. 18—. 



,DIV. I.] CANADA THISTLES. Ill 

5. Prosecutions,] § 5. It shall be the duty of the commis- 
sioner to prosecute or complain to the proper authorities of any 
person or corporation who may violate any law now existing, or 
which may hereafter be passed, on the subject of Canada thistles. 
[See Eev. Stat., Crim. Code, ch. 38, § 40, 41. 

6. Report of commissioner.] § 6. The commissioner shall, 
annually, before the first day of November, make a written report 
to the supervisor of the town, or to the county commissioners, as 
the case may be — which report shall be filed with the town clerk, 
or, in counties not under township organization, with the county 
clerk. The report made to the* supervisor shall be publicly read 
at the annual town meeting. Said report shall state — 

First — Whether there are or not any Canada thistles growing 
in the town or precinct. 

Second — If any are growing, where and how many, and when 
and how introduced. 

Third — A detailed statement of his treatment of each infected 
tract, with cost and result. 

Fourth — He shall report such other matters as maybe required 
of him by the board of town auditors, or by the county com- 
missioners. 

Fifth — He shall state his views on their further treatment, and 
make such suggestions and recommendations as he may deem 
-proper and useful. 

And he shall also forward a copy of said report to the secretary 
of the state board of agriculture, who shall collate and report the 
same to the governor by the first day of December of each year.(l) 

(1) Form of Report of the Commissioner of Canada Thistles, 

To A. B., Supervisor of the Town of , in the County of [or to 

the County Commissioners, as the case may be]. 

The undersigned, commissioner of Canada thistles for the town of , 

said county, would report that said thistles are now growing in said town 
[as the case may be], on the farm of J. D. [describe its location], and that 

the same were introduced about by ; that his treatment of 

each infected tract of land, with the cost and result, has been as follows 
[state particulars'] : and that he believes said thistles should be treated for 
another year in the same way, by which time they will probably be entirely 
eradicated. Said commissioner would suggest and recommend that, etc. 

CD., 

Commissioner of Canada Thistles for the town of . 

Dated this day of , A. D. 18—. 

Form of Decision of Commissioners of Highways in Case of Appeal. 

County, 



Town of 

The commissioners of highways of said town of , having heard 

the appeal of A. B., from the decision of C. D., commissioner of Canada 



112 TOWNSHIP OKGANIZATTON. [DIY. I„ 

7. Accounts audited.] § 7. The board of town auditors, and 
the county commissioners in counties not under township organ- 
ization, shall audit the accounts of the commissioner, both for his 
services and for the money expended or labor employed by him ;. 
and they shall provide for their payment as they now do for other 
town or county expenses. 

8. Appropriations— control by county board.] § 8. The boards 
of supervisors and county commissioners may make appropria- 
tions from the county treasury to aid in destroying the Canada, 
thistle in any one or more towns or precincts of the county ; and 
in case they deem it expedient, they may assume control over any 
one tract or of all the Canada thistles in the county, and make 
such provision as they may deem necessary, and impose penalties, 
not exceeding $100 for each offense, for a violation of any pro- 
visions, by-laws or regulations made by them on this subject, to 
be sued for by the commissioner, in the name and for the use of 
the proper county, before any justice of the peace having juris- 
diction. Whenever the board of supervisors or county com- 
missioners shall decide to assume control, and so long as they 
exercise it, their jurisdiction shall be superior to that of the 
commissioner. 

9. Emergency.] § 9. Whereas, Canada thistles are now grow- 
ing in various parts of the state, requiring attention before the 
first day of July : therefore this act shall take effect and be in 
force from and after its passage. 

thistles of said town, filed in the town clerk's office, on the day 

of ? is — , do affirm the decision of said commissioner, and that the 

boundaries of said infected tract remain as marked by said commissioner, 
or "We do in all things reverse the decision of said commissioner," or if 
the boundaries are changed add after the as follows: We do- 
change the boundaries of said infected tract as follows [here set forth the 
boundaries'] . 

In witness whereof, we have hereunto set our hands this day 

of A. D. 18— . 

Signed by the Commissioners. 

Form of Decision of Commissioner of Canada Thistles, 
County.^ > 



Town of 

The undersigned commissioner of Canada thistles for said town of - 



having found Canada thistles growing upon the enclosed lands of A. B., 
in said town, and having advised with him in the matter, and not being 
able to agree with him in the premises, and said commissioner deeming it 
expedient that he should fully control the same, he proceeded and marked 
out the following as the tract of land of said A. B., infected by Canada 
thistles, to-wit: [here describe the boundaries']. 

Witness my hand this day of , A. D. 18—. 

C. D., Commissioner of Canada Thistles. 



DIY. il] roads and bridges. 113 



DIVISION II. 

ROADS AND BRIDGES. 

IN COUNTIES UNDER TOWNSHIP ORGANIZATION. 

AN ACT In regard to roads and bridges in counties under township organization. [Approved 

May 28, 1879. In force July 1, 1879.J 

PUBLIC HIGHWAYS DEFINED. 

Section. 

1. Certain roads declared public highways. 

1. Certain roads declared public highways.] § 1. That all 
roads within this state, which have been laid out in pursuance of 
any law of this state, or of the late territory of Illinois, or which 
have been established by dedication or user for twenty years, and 
which have not been vacated in pursuance of law, are hereby 
declared to be public highways. (1) 

(1) As to mode of vacation of highways see post, § 69. 

A highway is a public way for use of the public in general, for passage and traffic 
without distinction. Persons making use of horses as the means of travel or traffic by the high- 
ways have no rights therein superior to those who make use of them in other permissible modes. 
Improved methods of locomotion are admissible and cannot be excluded from existing public 
roads if not inconsistent with the present methods. 34 Mich. R., 212. 

Navigable rivers and public streams are public highways, and every person has 
an equalright to a reasonable use of them as such. Davis v. Winslow, 51 Maine R., 264. 

There are several modes of acquiring a highway or public right of way. 1. By 
condemnation, so called. 2. By dedication. 3. By prescription or user. Highways are also allowed 
by necessity. Daniels v. The People, 21 111. R., 439 ; Grube v. Nichols, 36 111. R., 92. 

I. HIGHWAY BY CONDEMNATION. 

Condemnation is the ordinary mode of acquiring a highway prescribed by the 
statute, by petition to the commissioners, an examination and survey of the route, and a declar- 
ation of establishment, if it is found necessary for the public interest. The right is given to take 
the land of individuals by awarding compensation, which is called condemnation. The prop- 
erty is taken by what is called the right of eminent domain. See post, § 69. 

II. HIGHWAY BY DEDICATION. 

Dedication is the act of donation, or appropriation of land by the owner to the 
use of the public generally, as a common way ; and an acceptance, on the part of the public 
of the land so appropriated. Bouv. Law Diet., title " Highway." Gentleman v. Soule, 32 111., 
R„ 272. 

To make the dedication complete, it is essential that there should be an accept- 
ance on the part of the public, as well as a donation on the part of the individual. Although 
the owner may declare land dedicated to the public for a highway by fencing it out in that form, 
or by other evidence of dedication, yet if it be not accepted by the public, it will be no dedica- 
tion, and he may resume the land at any time. Becker v. St. Charles, 37 Mo. R., 13. But if after 
such act of dedication by the owner, it is accepted by the public, he cannot change his purpose 
and resume the grant. Procter v. Town of Lewistown, 25 111. R., 153. 

To effect a dedication, there must be an intent so to do on the part of the owner. 
Pees v. City of Chicago, 38 111. R., 323; C. B. & Q. R. R. Co. v. Bunker, 44 111. R., 28, and authorities 
cited; and this intention must be unequivocal and free from doubt by acts inconsistent with the 
intention to dedicate. Tallmadge v. East River Bank, 26 N. Y. Rep. (12 Smith), 105; Lownsdale v. 
Portland, 1 Oregon R., 397 ; Kelly v. City of Chicago, 4S 111. R., 388. 

The vital principle of dedication is the intention to dedicate. Harding v. Town 
of Hale, 61 111. R., 192. 

The dedication or intention may be manifested or established by grant or written instrument; 
by declaration or by acts of the owner. Gentleman v. Soule, 32 111. R., 272. Or it may be inferred 

8 



114 ROADS AND BRIDGES. [DIV. H. 



LAW OF THE ROAD. 
Section. 

2. Turn to the right. 

3. Drunken driver. 

4. Drunken driver — Discharge of. 

5. Running horses on public road. 

6. Teams to be hitched. 

7. Owner liable for damages— Driver of stage, etc., guilty 

of misdemeanor. 

8. Carriage denned. 

9. Restriction — Jurisdiction. 

2. Turn to the right] § 2. Whenever any person, traveling 
with any carriages, shall meet on any turnpike, road or public 
highway in this state, the persons so meeting shall seasonably 
turn their carriages to the right of the centre of the road, so as 
to permit each carriage to pass without interfering or interrupt- 

from long and uninterrupted user by the public with the knowledge and consent of the owner. 
Mclntyre v. Storey, 80 111. R., 127. 

The intention must be signified by something more than symbols of uncertain import, by 
which it has pleased a draftsman to decorate a plan of property. David v. New Orleans, 16 La. 
An. R., 404. 

Declarations of the owner, made after the alleged dedication, may be received 
as evidence of intention. Proctor v. Town of Lewistown, 25 111. R., 153 ; Cfiapin v. State, 24 Conn. 
R., 236. 

It is not necessary that an intention on the part of the owner of the land to dedicate 
the same at -the time the public commenced using it should be shown. Such intention may as 
well have been formed and entertained subsequently. Town of Havana v. Biggs, 58 111. 
R., 483. 

Dedication may toe proved against the owner toy his express declaration, 
whether by deed or by parol, or by any act unequivocally evincing his intention to dedicate, as 
by his opening a way to the public over his land, or it may be implied by his acquiescence in 
the use of his land for a public way. Angell on Highways, C 3; 3 Kent. Com.. 451; Case v. 
Favier, 12 Minn. R., 89 ; Wilder v. City of St. Paul, 12 Id., 89. 

The ..acceptance of a dedication is usually manifested toy acts, such as taking 
charge of and repairing the highway by the proper county or town authorities. Gentleman v. 
Soule, 32 111. R., 272 ; Bees v. City of Chicago, 38 111. R., 323; and it may be shown by the actual use 
by the public; Alvord v. Ashley, 17 111. R., 363 ; Dimon v. The People, 17 111. R., 416 ; Marcy v. 
Taylor, 19 Id., 634 ; Daniels v. The People, 21 Id., 442 ; or by vote of the town in appropriating 
money for repairs. State v. Atherton, 16 N. Hamp. R„ 203. 

A town could probably accept a dedication by laying out a highway over the premises dedi- 
cated on petition, as in other cases of laying out highways. 

No particular length of time is necessary for evidence of dedication. Marcy 
V. Taylor, 19 111. R., 634 ; Bees v. City of Chicago, 38 Id., 323. 

All that is required is the assent of the owner of the soil to the piibi.. iiV and the 
actual enjoyment by the public of the use for such length of time that the public a..-, numodj.- 
tion and private rights acquired on the faith of it would be materially injured by a ueuln: ox 
interruption of the enjoyment. But the question of a valid dedication, as between the- owner 
and the public, generally depends upon the intention of the owner to devote the soil to public 
use and the acceptance by the public. City of Chicago v. Wright, 69 111. R., 318. 

Dedication may toe proved lihe any other fact. Bees v. City of Chicago, 38 111. R., 
323. But the evidence must be positive and certain. Lownsdale v. Portland, 1 Oregon R., 397. 

To show the right, toy dedication, the proof sliould toe satisfactory, either of 
an actual intention to dedicate, or of such acts and declarations as should equitably estop the 
owner from denying such intention. Kyle v. Town of Logan, 6"j III. Li., 64. 

The dedication is a mixed question of law and fact; and the circumstances of the 
case with reference tc fl v? dedication, and the quantity of land taken should be left to the jury. 
Alvord v. Ashley, 17 111. k. *K Waugh v. Leech, 28 Id., 489. 

A straight line drawn through the centre of a Virginia fence, which has been continued for 
more than twenty years fronting on a highway, the boundaries of which cannot be otherwise as- 
certained, is to be deemed the true boundary, and „>■> re is no presumption that the lane : nolosed 
between that and the angles of the fence next the highway was not intended to be dedie>ued to 
public use. HoUyrook v. McBHde, 4 Gray (Mass.) R., 215. 



DIY. ILj LAW OF THE ROAD. 115 

ing, under the penalty of five dollars .for every neglect or offense, 
to be recovered by the party injured : Provided, this section shall 
not be construed to apply to any case, unless some injury to per- 
sons or property shall occur by the driver of the carriage or wagon 
refusing to turn to the right of the beaten track, nor shall it be 
construed to extend to a case where it is impracticable, from 

A dedication is not vitiated because it may have been effected by the payment 
of money. Rees v. City of Chicago, 38 111. R., 323. But a dedication on condition is void if the 
condition is not complied with. Lovmsdale v. Portland, 1 Oregon R., 381. 

The soil of a road dedicated to the public belongs to the original owner, and reverts to him 
when it ceases to be applied to a public purpose. Mendez v. Dugart, 17 La. An. R., 171. 

A party will toe estopped from denying a dedication which has received his grantor's 
acquiescence ; Rees v. City of Chicago, 38 111. R., 323 ; or which he has acquiesced in by a partition 
of lands in which he is interested. McGregor v. Reynolds, 19 Iowa R., 397. 

To constitute a highway by dedication the passage way should be a thoroughfare and not a 
court closed at the end as a means of access to the property of private persons, but a means of 
passage for the whole community from one public place to another. Holdane v. Trustees of Cold 
Spring, 23 Barb. R., 103. 

A highway acquired hy dedication is like any other highway, and cannot be 
altered or changed at the will of the owner of the land over which it passes, Holesoft v. King, 25 
Ind. R., &52. 

A road may exist part hy dedication and part by record, and if the owner of land ded- 
icated a portion of the road in use in exchange for a portion of a way laid out, the portion so 
dedicated would be a valid road. Town of Havana v. Biggs, 58 111. R., 483. 

The dedication can be made only by the owner of the title to the ground. Kyle v. Town, of Lo- 
gan, 87 111. R., 64. 

The mere act of working, repairing or traveling on a road, with the knowledge and 
assent of the owner, does not constitute it a highway. Harding v. Town of Hale, 61 111. R., 192. 

But long user by the public connected -with such acts of acceptance and acquiescence 
of the owner tend to show a dedication ; user in such case does not depend upon any fixed period 
of time. Hiner v. Jeanpert, 65 111. R., 428. 

The acknowledging and recording of a town plat, is the highest evidence ot the 
dedication of the streets and alleys marked upon it, and until the town becomes incorporated, 
the streets are under control of the county or town authorities. The streets as platted cannot be 
enlarged or diminished, but the highway authorities may direct how much of a street shall be 
worked upon or improved. Streets dedicated by a plat, unless lawfully reclaimed by the person 
who has platted, will forever remain to the use of the public. Waugh, suing, etc., v. Leech, 28 111, 
R.,489. 

The plat of an addition to a town, although not acknowledged and recorded, 
operates as a dedication of the streets, but not as a conveyance of the fee of the streets to the 
corporation. Banks v. Ogden, 2 Wallace R. (U. S.), 57. 

A river, though not navigable in all its parts, may be dedicated as a highway by 
the proprietors of land along its banks, in the same manner as a highway may be dedicated upon 
dry land. Yates v. Judd, 18 Wis. R., 118. 

Where a highway was laid out on the line between two farms, and in 1855 was 
opened by the owner of one of them its full width, instead of one half thereof, the true line not 
being then known, and the fence so remained until 1872, when the mistake as to the line was 
first discovered. This act of such owner was held not to be a dedication on his part of the ex- 
cess of land thus opened to the highway, and that he had a right to correct the mistake, and 
remove his fence accordingly. Manlove v. Parker, Sup. Ct. 111., 1879. Weekly Jurist, 189. 

III. HIGHWAY BY PRESCRIPTION OR USER. 
3. Prescription is the mode of acquiring a highway by long continued use. 

The uninterrupted use of land by the public for a highway tor the period of twenty years is suffi- 
cient to establish the existence of a highway. Green v. Oakes, 17 111. R., 249 ; Daniels v. The People, 
21 111. R., 439 ; Alvord v. Ashley, 17 Id., 363. And this right continues until it is clearly and unmis- 
takably abandoned. A partial deviation is not an abandonment. Town of Lewiston v. Proctor, 
27 111. R., 414. After twenty years user by the public the law presumes a grant of the right by the 
owner. Grube v. Nichols, 36 111. R., 92. Or it may be presumed that such road was legally laid 
out, if such it is claimed. Slate v. Boscawen, 32 N. Hamp. R., 331. The right of the public will 
become complete without regard to ownership, whether it be individual or governmental. JDimon 
v. The People. 17 111. R., 416. But when a road has not been used twenty years, its legal existence 
may be disputed. Lames v. Northumberland, 44 N. Hamp. R., 65. 

Twenty years is the shortest time -within which the public can acquire a pre- 
scriptive right to use a road. Kishlman v. Hecht, 77 111. R,, 570. Nor can the time during which 
various and distinct lines of travel have been used be so united as to make up the requisite time 
to establish a prescriptive right to any given single line of road. In case of a highway claimed 
by prescription, the travel may slightly deviate from the thread of a road which is being used, to 



116 BOADS AND BRIDGES. [DIV. II. 

the nature of the ground, for the driver of the carriage or wagon 
to turn to the right of the beaten track. (L) 

3. Drunken driver.] § 3. No person owning any carriage, run- 
ning or traveling upon any road in this state, for the conveyance 
of passengers, shall employ, or continue in employment, any per- 
son to drive such carriage who is addicted to drunkenness, or the 

avoid an obstruction, and still not change the road itself. But it is otherwise where the whole 
length of the road is abandoned for eight or nine years, and is not sufficiently traveled to prevent 
its being obstructed by the growth of weeds and brush. In such case there is not that continued 
user which is absolutely necessary to establish a prescriptive right. The public cannot acquire «,. 
prescriptive right to pass over a tract of land generally, but it must be confined to a specific line 
or way. Gentleman v. Soule. 32 111. R., 271. 

After twenty years of peacable use, the law presumes a grant. Kishlman v. Hechi, 
77 111. R., 570. 

Mere user on the part of the public of a right of way does not give the public a 
public highway, unless it is accompanied by act showing that the use is under a claim of right, 
and not merely by permission of the owner. Sharp v. Mynatt, Sup. Ct. of Tenn., 1878. 

The public do not acquire a public road over vacant and unoccupied land by 
travel over the same, for twenty years or more, merely from acquiescence on the part of the 
owner. Kyle v. Town of Logan, 87 111. R., 64. 

If a road is used and traveled by the public as a highway, and is recognized 
and kept in repair as such by the proper authorities, proof of these facts furnishes a legal pre- 
sumption, liable to be rebutted, that such road is legally established as a public highway. It is 
not necessary, in the first instance, to produce record evidence of the existence of a road; and 
parol evidence is admissible to show where a road is located. JEyman v, The People, 1 Gilm. R., 
4.; Nealy v. Brown, 1 Gilm. R., 10. 

Whether highway is by user only or by the statute, it must be of the width pre- 
scribed by law, where the dedication or donation is not expressly or impliedly restricted by the 
owner; when not so restricted it is not confined to the mere track which is beaten by carriages 
and the feet of animals in passing along, but includes and carries with it the width as provided 
by statute. Bwmpers v. Miller, 4 Mich. R., 164. 

Where, through the apparent abandonment of a public way for an unreason* 
able time, private rights have accrued, the public are estopped. Opinion Attorney General 
Berry, (Minn.,) Vol. 1., p. 89. Parrish v. Stevens, 1 Oregon R., 59. 

The public have no right, however, under the law of prescription, to use and 
occupy the soil of an individual adjoining navigable waters, as a public landing and place of 
deposit of property in its transit, againt the will of the owner, although such user has been con- 
tinued for more than twenty years. The user cannot be urged by the public either as the founda- 
tion of a legal presumption of a grant, and thus justify a claim by prescription, or as evidence of 
dedication of the premises to public use. Pearsal v. Post, 20 Wend. R., Ill; S. C. on Error, 22' 
Wend. R., 425. 

IV. HIGHWAY BY NECESSITY. 
A highway by necessity, is -where the travelled road becomes obstructed or 

impassable for any cause. In such case the right of the public is allowed to pass over adjoining 
lands, even though the land may be sown with grain. 1 Ld. Raym., 1 Rolle Abr., 390a, 7 Cush. 
R., (Mass..) 408. But such right gives the public no permanent easement in such adjoining lands 
State v. Northumberland, 44 N. Hamp. R., 628. 

Lands adjoining a public highway, remaining uninclosed, are considered as 
dedicated to the public use. and no action will lie by the owner against any person traveling over 
them. Cleveland v. Cleveland, 12 Wend. R.. 172. 

(1) The law of the road requiring traveleis meeting each other on the highways to> 
turn to the right of the middle of the traveled part of the road, prescribes a general rule to 
avoid injuries, but does not undertake to define fully the duties of travelers under all possible 
circumstances. The statute will not justify a man who remains stubbornly and doggedly upon 
the right of the traveled part of the highway, and thereby wantonly produces a collision, when 
a slight change of position would have prevented it. O'Maley v. Born, 7 Wis. R., 236. 

!Nor does the law requiring travelers seasonably to drive to the right, apply where one vehicle 
is passing along one street, and another is turning into it from a cross road. Lovejoy v. Bolan, 10 
Cush. R., (Mass.) 495. 

The rule only applies to, and regulates the conduct of travelers as between themselves. 
Where a light vehicle can pass with safety to the left of a heavily loaded team, it is their duty 
to give wav and leave the choice to the more unwieldly vehicle. Grier v. Sampson, 27 Penn. 
State R., 183. 

A party having before him the whole road, free from obstructions, and having 
no notice of any carriage bclni <■• him in season to stop or change his course, is at liberty to 
travel on any part of the road ihut he pleases. Foster v. Goddard, 40 Maine R., 64. 



DIV. II.] LAW OF THE ROAD. 117 

•excessive use of spirituous liquors, and if any such owner shall 
violate the provisions of this section, after he shall have had 
notice and reasonable proof that such driver is addicted to drunk- 
enness, he shall forfeit at the rate of five dollars per day for all 
the time during which he shall thereafter have kept any such 
driver in his employment. 

4. Drunken driver— Discharge of.] § 4. If any driver, whilst 
actually employed in driving any such carriage, shall be guilty of 
intoxication to such a degree as to endanger the safety of the 
passengers in the carriage, it shall be the duty of the owner of 
such carriage, on receiving written notice of the fact, signed by 
any one of said passengers, and certified by him on oath, forth- 
with to discharge such driver from his employment ; and every 
such owner who shall retain or have in his employ, within one 
month after the receipt of such notice, any driver who shall have 
been so intoxicated, shall forfeit at the rate of five dollars per day 
for the time during which he shall keep any such driver in his em- 
ployment after receiving such notice. (1) 

5. Running horses on public road.] § 5. No person driving 
any carriage upon any turnpike road or public highway within 
this state, with or without passengers therein, shall run his horses 
or carriage, (or permit the same to run) upon any occasion, or for 
any purpose whatever ; and every person who shall offend against 
the provisions of this section, shall be deemed guilty of a mis- 
demeanor, and on conviction thereof, shall be fined not exceeding 
ten dollars, or imprisoned not exceeding sixty days, at the discre- 
tion of the court. 

6. Teams to be hitched.] § 6. It shall not be lawful for the 
driver of any carriage used for the purpose of conveying passen- 

(1) Form of Notice to Owner of Carriage of Intoxication of Driver. 
To A. B., 

Owner of carriage running from to , between and 

, in the county of : 

Sir— You are hereby notified, that on the day of , 18—, C. D., 

the driver of such carriage, whilst actually employed in driving the same, 
was intoxicated to such a degree as to endanger the safety of the passen- 
gers in said carriage. 

Dated , the day of , 18—. E. F. 

State of Illinois, \ 

County, / ss - 

E. F., whose name is subscribed to the above notice, being duly sworn, 
deposes and says that he was one of the passengers in the above mentioned 

carriage, on said day of , 18 — , and he certifies that the facts 

set forth in the above notice are true. 

E. F 



Subscribed and sworn to before me, this ) 

day of , 18—. [ 

G. H., J. P.) 



118 KOADS AKD BEIDGES. [DIV. IT. 

gers for hire, to leave the horses attached thereto while passengers 
remain therein, without first making such horses fast with a suf- 
ficient halter, rope or chain, or by placing the lines in the hands 
of some other competent person, so as to prevent their running; 
and if any such driver shall offend against the provisions of this 
section, he shall forfeit the sum of twenty dollars, to be recovered 
by action, to be commenced within six months ; and unless the 
amount of such recovery be paid forthwith, execution shall be 
immediately issued therefor. 

7. Owner liable for damages— Driver of stage, etc., guilty of 
misdemeanor.] § 7. The owners of every carriage running upon 
any turnpike road or public highway, for the conveyance of pas- 
sengers, shall be liable, jointly and severally, to the party injured, 
in all cases, for all injuries and damages done by any person in 
the employment of such owners as a driver, while driving such 
carriage, to any person, or to the property of any person ; and 
that, whenever the act occasioning such injury or damage be 
willful, negligent or otherwise, in the same manner that such 
driver would be liable. Any driver of any mail stage coach, or 
any other vehicle for the conveyance of passengers, willfully 
offending against the provisions of this act, shall be deemed 
guilty of misdemeanor, and, on conviction thereof, shall be im- 
prisoned not exceeding four months, or fined not exceeding three 
hundred dollars. 

8. Carriage defined.] § 8. The term "carriage" as used in 
this act, shall be construed to include stage coaches, wagons, 
carts, sleighs, sleds, and every other carriage or vehicle used for 
the transportation of passengers and goods, or either of them. 

9. Restriction — Jurisdiction.] § 9. Nothing contained in this 
act shall interfere with or affect any law concerning hackney 
coaches or carriages in any of the cities, towns or villages of 
this state, nor interfere with nor affect the laws or ordinances of 
any such city, town or village, for the licensing or regulating such 
coaches or carriages. Justices of the peace shall have jurisdic- 
tion in all cases arising under this act, where the penalty does 
not exceed their jurisdiction. 

DUTIES OF COMMISSIONERS OE HIGHWAYS. 

Section. 

10. Duties of commissioners. 

11. Commissioners to choose treasurer — His duties — Bond. 

12. Annual accounting of commissioners. 

13. Meetings of commissioners — Record to be kept. 

10. Duties of commissioners.] § 10. The commissioners of 
highways in the several towns in this state shall have the care 



DI~V. II.] COMMISSIONERS OF HIGHWAYS. 119 

and superintendence of highways and bridges therein, and it 
shall be their duty :(1) 

First. — To give directions for t3ie repairing of roads and bridges 
in their respective towns, and to cause the building of bridges 
when the public interests or necessity require it. (2) 

(1) The construction of roads and. bridges, under our system, is for the most part ac- 
complished through our township organization; the counties contributing towards the construc- 
tion of bridges, in cases where the expense would be too onerous to be wholly borne by the 
towns in which they are situated. The statute in express terms, gives to commissioners of high- 
ways, when elected, the care and superintendence of the highways and bridges of the town, 
and confers upon them all powers requisite for the execution of their trust. They are not di- 
rectly responsible to the town, but are themselves a species of quasi corporation, with power to 
sue and be sued, having legal succession and deriving their authority, not through the town, but 
directly from the statute. The towns have no power to give the slightest direction or instruction 
to these officers as to the performance of their duties. Commissioners of NUes v. Martin, 4, Mich. 
R., 557. Commissioners., etc., v. Baumgarten, 41 111. R., 254. 

Towns have not the power, at town meeting, to direct the commissioners to remove 
a fence from a highway. Gray et at v. Waterman, 40 111. R., 523. The duty of the commissioners 
in this regard is prescribed by the statute, which they are bound to observe. See post § 78. 

Commissioners of highways cannot, by virtue of their office, bring suits to recover 
damages against individuals or corporations for illegally entering upon and taking possession 
of the public highways or bridges of their town. Neither have the electors of a town, at a town 
meeting, power, by re'solution or otherwise, to authorize such commissioners to bring an action 
in their own names, or in their name of office, for such injuries. Such a resolution, if passed at 
town meeting, would not bind the town. Thus, where the electors of a town, at town meeting, 
directed the commissioners of highways to prosecute a turnpike company for entering upon 
and taking possession of a public highway and bridge in that town, and the commissioners ac- 
cordingly brought a suit for the cause of action in their names as commissioners, and had judg- 
ment a'gaint them. Held, that they could not sustain an action againt the town to be reimbursed 
their cost and expenses, or the costs recovered against them in that suit. The electors of a town 
cannot bind the town, except in manner prescribed by law. Cornell v. Guilford, 1 Denio R., 510. 
See Township Org'n Act, Art. 4, Sec. 2, and note. 

Commissioners of highways, though not expressly authorized by statute, have 
the power to sue when necessary to the performance of their duty. This would seem to follow 
from the nature of their office. Overseers v. Overseers, 18 Johns R., 407 ; 1 Cowen R., 260 ; 3 Wend. 
R.. 183; 7 Id.. 131 ; 19 Id., 50. In New York it is held, they cannot maintain an action in their 
official title alone; they must sue in their individual names, adding their official title, as A., B. 

and C, "commissioners of highways of town of ." 4 Hill, 136; 5 Id., 215; Denio R., 510. 

And commissioners who advance their own money to pay the claim of an attorney for such 
services, and take an assignment of the claim, may recover the amount from the town. Bantz 
V. Bantz, 44 Barb R., 459. 

Where the commissioners of highways make themselves parties to a proceeding 
to reverse a decision of the supervisors, dv writ of certiorari, and are unsuccessful, a judgment 
against them lor cost is proper. If they were acting in behalf of the town, they should have 
appeared in its name and not their own. Commissioners, etc., of Sonora v. Supervisors of Carthage, 
etc., et al, 27 111. R., 141. 

But in awarding a peremptory writ of mandamus to compel the commissioners to lay out a 
road which had been ordered on appeal to supervisors, it is error to render judgment for cost 
against them, ('osts in such case should be awarded against the town. Commissioners of High- 
ways v. The People ex rel., 38 111. R., 347. 

Commissioners of high-ways are individually liable in an action on the case for mak- 
ing a drain or ditch, and a grade or embankment, so near the land of a party, and in so unskill- 
ful and careless a manner as to cause the rain and surface water running from such drain to flow 
upon the plaintiff s premises to his injury. . The work of constructing or repairing a public 
highway is not a judicial, but a ministerial act, and must be performed with a proper regard to 
individual rights, as well as the public accommodation, and for the negligent performance of 
ministerial acts the commissioners ol highways are personally responsible if injury result to 
others. Tearney etalv. Smith, b6 111. R., 391. 

The commissioners cannot hind their towns by any contract, or exercise any 
other powers not conferred on them by statute. Brauns v. The Town of Peoria, 82 111. R., 11. 

(2) The construction and improvement of public roads tends to mark distinctly 
the progress of society. This is a subject which has claimed the attention of all prosperous and 
well regulated communities in all ages of the world. In England, every parish is bound of com- 
mon right to keep the high roads that pass through them in good and sufficient repair ; unless 
by reason of the tenure of lands, or otherwise, this care is consigned to some particular private 
person. From this burthen no man was exempt by the ancient laws of that country, whatever 
other immunities he might enjoy; this being a part of the three burdens to which everv man's 
estate was subject. For the most part the care of roads, only, seems to be left to parishes* that of 



120 BOADS AND BRIDGES. [DIV. H, 



Second — To lay out and establish roads ; to regulate the roads 
already laid out, and to alter or vacate such roads, as they, or a 
majority of them shall deem proper as hereinafter provided. (1) 

bridges devolving mostly upon counties at large. By Stat., 22 Hen. VIII, chap. 5, if the parish 
neglected those repairs, they might formerly, as now, be indicted for such neglect ; hut it was 
not then incumbent on any particular officer to call the parish together and set them upon this 
work; for which reason, by the Stat. 2 and 3 Ph. and M., chap. 8, surveyors of highways were 
ordered to be chosen in every parish. See 1 Black. Com., 358. Like officers in the United States 
are designated by different appellations, as surveyors, commissioners, overseers, supervisors, etc. 

Concerning the duties of commissioners of highways in keeping roads in repair* 
Chancellor Kent says: This seems to be a general duty, applicable at all times and in all places, 
yet when we come to read the details of their duty, we perceive it does not exist absolutely, but 
arises only when the commissioners have money in hand from forfeitures and penalties, or 
which have been paid over to them under the direction of the supervisors. Bartlettv. Crozier, 
17 Johm, 452. See also to the same effect, Garlinghouse v. Jacobs, 29 N. Y. R. (2 Tiffany), 297, Davis, 
J., dissenting. When commissioners have not sufficient funds for all purposes, they may exer- 
cise discretion as to which of the bridges in the town they will undertake to repair. They will 
be presumed to have exercised that discretion in good faith, and cannot be made responsible, in 
a civil action, for its exercise. Garlingiiouse v. Jacobs, 29 N. Y. R. (2 Tiffany), 297. They have 
power to buy, at the expense of the town, all necessary timber, etc., for repairing roads and 
bridges within their jurisdiction. Wells v. Goffstown, 16 N. Y. R., 53. See post, § 119. 

The powers of commissioners of highways are co-extensive with the territory in- 
cluded in the public way, and they may work and improve every part and parcel of it at pleas» 
ure, being only responsible for a wanton or malicious injury to the rights of the adjacent owners 
In villages or other thickly settled portions, where their powers are not superseded by acts of in- 
corporation or otherwise abridged, they may make reasonable and suitable provisions for walks 
or passways for foot passengers at the sides of the streets or highways. Graves & White v. Otis and 
others, 2 Hill It., 466. 

Labor assessed for highway purposes can only be bestowed upon such roads as are 
established by law. When lands are dedicated by the owner to public use as streets, they do not 
become public highways until accepted as such by the public authorities. Oswego v. Oswego 
Canal Co., 2 Selden R., 263. 

A highway commissioner would have no authority to expend money committed to him for the 
repair of highways in changing the line of travel, and constructing a new road. Todd v. Bow- 
ley, 8 Allen. R. (Mass.), 51. But this probably does not apply to the case of a slight departure 
from the established road from necessity to avoid a formidable obstruction. 

It is a question -whether a road may he abandoned by mere non-user, so as to re- 
lieve the town authorities from the duty of keeping it in repair. When a road is used to any 
extent, although it may be obstructed by movable bars across it, it will not be considered aa 
abandoned. State v. Alstead, 18 N. Hamp. R., 59. 

The fact that a town has expended money and labor on a road, and included 
it in the rate bills of the highway surveyors, as a public road on which highway taxes are to be 
expended, and has left il open for public travel, and all as a common highway, tends to prove 
that the town has adopted it as a highway, therefore a bridge on said highway, necessary to con- 
nect the portions of it on each side of the bridge, was also adopted. Folsom v. Underhill, 36 Vt 
R., 580. 

Towns are not liable to a private action for damages, occasioned by the neglect of the 
town authorities to keep their public highw ays in order, either by the common law or under any 
statute of Illinois; in respect to that character of liability, there is no difference between the 
authorities of counties, and their powers and duties in regard to public highways, and towns 
established by law as civil divisions of counties merely, and the doctrine of the case of Hedges 
v. The County of Madison, 1 Gilm. R., 567, declaring that counties are not liable to such private 
actions, applies to towns of that description. Town of Waltham v. Kemper, 55 111. R., 346. 

On the subject of liability of towns for neglect to keep highways in repair, see' 
Township Org'n Act, Art. IV, § 2, note to 1st clause. 

It is the duty of a town to build bridges over streams within its limits. This 
being so, the town will be responsible if they make such a structure as will obstruct the free nav- 
igation of the stream. Town of Harlem v. Emmert, 41 111. R., 320. But the right of a town to 
build a bridge over a river is co-extensive with the right to navigate it, and a bridge constructed 
on the most approved plan, at the proper place, and with sufficient channel between the piers, 
over any of our navigable waters, cannot be held to be a material obstruction to the navigation 
if it appear, that in ordinary times, with ordinary wind and water, the draw can be safely 
passed, and that no better structure could be erected for the purpose designed, with the amount 
of outlay demanded for such undertaking. There is no restriction in the ordinance of 1787, if it- 
still be in iorce, on the power of the state to use the most approved artificial means for crossing 
navigable waters within the state ; it onlv prohibits their obstruction, and the imposition of any 
tax or duty on their navigation. III. R. Packet Co. v. Peoria Bridge Association, 38 111. R., 468. 

(1) In laying out a road, the action of a majority of the commissioners thereon is suf- 
ficient to render their proceedings valid, when the statute provides that "they, or a majority of 
them, may proceed to act in the nrem ises." Hall et al. v. The People ex rel., 57 111. R., 579. 



DIV. II.] COMMISSIONERS OF HIGHWAYS. 121 

Third.— To cause such roads used as highways as have been 
laid out, or dedicated to public use, but not sufficiently described, 
and such as have been used for twenty years, but not recorded, to 
be ascertained, described and entered of record in the town clerk's 
office.(l) 

In. laying out and opening highways the commissioners of highways are merely the 
agents of their towns. Woodruff v. Town of Glendale, 23 Minn. R., 537. 

A town cannot, by vote, authorize or compel the commissioners of highways 
to lay out, alter or vacate a particular town way or public road; their duty being expressly 
pointed out by law, and they can only act in obedience to its provisions. Keen v. Stetson, 5 Pick. 
R., 492. For duty of commissioners see post, Sec. 28. 

The sxirvey and plat of a public road is evidence of its location, but is not conclusive ; 
but like the field notes of the government surveys, parol evidence may be received to show that 
the road was actually located differently from the calls in the survey of the road. Hiner v. The 
People, 34 111. R., 297. 

Parol evidence is admissible to show the existence of a public road. Brown v. 
Jefferson, 16 Iowa R., 339. As well as its location. Eyman v. The People, 1 Gilm. R., 4 ; Nealy v. 
Brown, Id., 10. 

The inference from evidence tending to show that a way over a man's land is a public road 
may be rebutted by evidence of non-user for more than twenty years. Burgwyn v. Lockhart, 1 
Wins. R., (N. C), No. 1,269. 

Where the public have ceased to travel a road, and have acquired another which 
accommodates public travel, an abandonment of the first road may be presumed. Grube v. 
Nichols, 36 111. R., 93. 

Where ground upon which a highway -was laid out, or which was dedicated for 
that purpose, has been in the open and exclusive adverse possession of the owner of the land 
for twenty years, and a complete non-user of the easement by the public during that time, an ex- 
tinguishment will be presumed. City of Peoria v. Johnston, 56 111. R., 45. 

A road, to which the public can have no access by a highway, cannot in the na- 
ture of things be public, and, at most, would serve only the purpose of private convenience. 
State v. Price, 27 Md. R., 449. 

It is an unsettled question in New York whether a road open at one end only, that is where 
but one end connects with a highway — technically termed a cut de sac— is a public highway. 
Hickok v. Plattsburgh, 41 Barb. R., (N. Y.), 130. But held in Maryland, where commissioners had 
authority to lay out a road, if, in their opinion, it would conduce to the advantage and conveni- 
ence of the public, a road laid out by them would be a public road, even if it did not connect 
with another highway. State v. Price, 21 Md. R., 449. 

The supreme court of Illinois sustained a highway which the record showed to be a cul de sac. 
Commissioner of Highways of Lyons v. The People ex rel., 38 111. R., 347. 

In a later case the supreme court decided that a road laid out by commissioners, under 
the statute, is a public highway, even though one end of the same terminates against private 
land, with no outlet. The statute must control against any contrary doctrine of the common 
law. Sheaff v. The People ex rel., 87 111. R., 189. 

The title of the owner of lands bounding upon a high-way is presumed to extend 
to the centre of the way. Rice v. Worcester, 17 Gray R., (Mass.), 283. But this will be rebutted by 
a deed showing to the contrary. Smith v. Slocum, 11 Gray R., (Mass.), 280. 

Plank roads are undoubtedly public highways, and different from common high- 
ways in the mode of construction, and the taking of tolls, and on the payment of the latter, 
travelers have the same right to use them as they have to use other highways. And where the 
company forfeit their charter, or abandon it, or suffer the road to so, become out of repair so as 
to amount to an abandonment, the right of way of the company ceases and the road becomes a 
common highway. Qraig v. The People ex rel., 47 111. R., 488. 

The common law writ of certiorari is the proper mode of proceeding where it is 
sought to question the jurisdiction of commissioners of highways, and regularity of their pro- 
ceedings in laying out and establishing a highway. Commissioners v. Harder, 38 111. R., 104. And 
it lies to bring up the record of proceedings in laving out a road by supervisors on appeal. Town 
of Winfield v. Moffatt et al., 42 111. R. , 47. 

(1) Form of Order of Commissioners of Highways for Ascertaining a Road 
Imperfectly Described or not Recorded. 

County,) 

Town of / ss * 

Whereas, a road leading from [northward to the road"], in 

said town of , and now used as a highway, was laid out by the com- 
missioners of highways of said town, on the day of , A. D. 18—, 



122 KOADS AND BKDDGES. [DIV. IL 

Fourth. — To cause the highways and bridges which are or may 
be erected over streams intersecting highways, to be kept in 
repair. (1) 

[or by authority of the County or County Commissioners' Court, as the 
case may be,~] but which is not sufficiently described [o?*, has been dedi- 
cated to public use; or, has been used for twenty years for such highway, 
but not recorded]. 
Now, therefore, we, the undersigned, commissioners of highways for 

the said town of , do order that said road be ascertained, described 

and entered of record in the clerk's office of said town, according to a sur- 
vey which has been made under our direction, as follows [here insert the 
survey]. And we do further order that the line of said survey be the cen- 
ter of said road and that the same be of the width of feet. 

Given under our hands this day of , A. D. 18 — . 

N. W., ) Commissioners 
O. S., I of 

W. H., } Highways. 

Under authority to re-survey roads, given in the above provision, the commissior.zrs 
proceed on their own motion, without petition. The object of the law seems to be to make a 
more perfect record of such roads, and thereby settle controversies that may arise. 

In the order of the commissioners ascertaining a road not sufficiently described, 
a statement as to the width, whilst it cannot operate to change the facts, may be proper as .show- 
ing the conclusions of the commissioners from examination of the premises, and the evidences 
coming to the attention in regard to the width. 

The act authorizing commissioners of highways to ascertain, describe and enter 
of record, roads used as public highways for twenty years, confers no authority upon them to 
adjudge what was originally intended in relation to the width or location of the road, any fur- 
ther than such intention is manifested by actual user, and they cannot increase the width of the 
road or change its location. If the commissioners in such cases, encroach upon lands which do 
not belong to the highway as it had been actually opened and used, the owner thereof cannot 
take his remedy by appeal, as in other cases, but must seek it in some other form. The People v. 
Judges, etc., 24 Wend. R., 491 ; Talmage v. Hunting, 29 N. Y. Rep. (2 Tiffany), 447 ; Bumpers v. Miller, 
4 Mich. R., 161. 

Where the statute requires public roads to he laid out a specified width, when 
laid out under the statute they are deemed to be that width ; yet where they are claimed not as 
being laid out under the statute, but by reason of a user for twenty years or more, they may be 
less than four rods wide. Harlan v. Harriston, 6 Co wen R., 189. 

The uninterrupted use of land as a highway for twenty years time, constitutes 
it a public highway without regard to the intention of the owners. Devenpeck v. Lambert, 44 
Barb. R., 596. 

Where one has permitted the public to use a road across his land for twenty 
years, but during that time has kept a gate at each end of the road, the right acquired by the 
public is a qualified prescription, and the commissioners of roads will be enjoined from removing 
the gates. Green v. Bethen, 30 Ga. R., 896. 

In determining the location of a road, the testimony of one who was both vieAver 
and surveyor, and of all others most capable of testifying to the fact, should be received. Morrow 
v. Commonwealth, 48 Fenn. State R., 305. 

(1) It is the duty of the commissioners to see that the repairs necessary on bridges 
are made, and if necessary labor is not performed through their neglect, or if the bridges are 
not kept in repair when they have funds in their hands applicable to such objects, they are 
liable for injuries that may result. Barttett v. Crozier. 17 Johns. R., 451. But commissioners of 
highways are not bound to build or repair bridges when not in funds to defray the expenses. 
The People v. Commissioners, etc., 7 Wend. R., 474. And an indictment against commissioners of 
highways for not repairing bridges is defective, unless it aver that the defendants had funds or 
other means to defray the expenses. The People v. Adsit, 2 Hill R., 619. 

At common law the counties and not towns were liable to build and repair the 
necessary bridges, and the remedy for neglect was by indictment. Barttett v. Crozier, 17 Johns. 
R., 452. This burden is imposed on counties by almost universal usage and the exception 
throwing the burden on towns or particular corporations only the more clearly shows the general 
rule. Hoes v. Canal Trustees, 14 111. R., 402; Dennis v. Maynard, 15 111. R., 477. 

But it seems that the inhabitants of a county are not liable at common law for not repairing 
bridges over canals. State v. County of Hudson, 1 Vroom R. (N. J.), 137. 

It is held in New Jersey that the inhabitants of a county are not indictable for not repairing 
bridges. State v. County of Hudson, 1 Vroom R. iN. J.), 137. 



DIV. H.] HIGHWAY COMMISSIONERS. 123 

Fifth. — To diyide their respective towns into so many road dis- 
tricts as they shall deem convenient, by writing, under their 
hands, to be lodged with the town clerk, and by him to be entered 
in the town book ; such division to be made annually, if they 
shall think it necessary ; and in all cases to be made at least ten 
days before the annual town meeting. (1) 

Sixth. — To assign to each of the said road districts such of the 
inhabitants liable to work on highways as they shall think proper, 
having regard to proximity of residence as much as may be. 

Seventh. — To require the overseers of highways, from time to 
time and as often as they shall deem necessary, to warn all per- 
sons to work on highways to come and work thereon, with such 
implements, carriages, plows and teams as they may have ; and 
the said commissioners, or any of them, shall direct and see that 
persons working or repairing the highways leave undisturbed all 
stones or other monuments marking sectional and other corners,, 
which may be in the public roads worked or repaired by them. 

Eighth. — To take possession of and keep all scrapers, plows and 
other tools belonging to their town, wherever the same may be 
found, and not allow the same to go to waste, and not lend the 
same, except to persons employed by them to work on the road& 
by contract or otherwise. 

"Where a "bridge is built by an individual over a natural stream, for his own 

benefit, if the bridge be of public utility and is used by the public, they are bound to keep it in 
repair; but not so when the necessity for the bridge is created by the individual. Dygert v 
Schenck, 23 Wend. R., 446. 

(1) Form of Order Dividing Town into Boad Districts. 
County, 



r SS. 

Town of J 

"We, the commissioners of highways for the said town of , do hereby 

order that said town be divided into road districts, as follows: Road 

district number one shall embrace all of the highways contained within 
the following territory [or boundaries, giving the description by sections, 
or outward boundaries, as may be thought proper], and all the inhabitants 
liable to work on the highways residing therein, shall be and are hereby 
assigned to work on the highways in said district number one. District 
number two shall, etc., [continue as aforesaid, until the whole town is 
divided.] 

Given under our hands this day of , A. T>. 18—. 

A. E., ) Commissioners 

E. T>., I of 

O. H.,"J Highways. 

Road districts are involuntary political or civil divisions of the State, created to 
assist in the administration of the government, as such, of necessity, they are authorized to levy 
and collect taxes for corporate purposes. Board of Directors v. Houston, 71 111., 322, Scott, J. 

The commissioners of highways have a right to divide the town into road districts at any time 
during the year, ten days before any town meeting. Opinion Att'y Gen'l Bekky (Minn.), vol. 1, 
p. 92. 

The town book referred to in the above section would seem to have reference to the bcok of 
records of the town, commonly called the town record, provided in the Township Act. See Art 
VIII, §2; Art. XII, §2. 



124 ROADS AND BRIDGES. [DIV. H 

Ninth. — To purchase for use upon highways such necessary tools 
implements and machinery as may be necessary : Provided, how- 
ever, that whenever either one of such tools, implements or ma- 
chinery, shall cost more than two hundred dollars, that the pur- 
chase thereof shall be first submitted to a vote of the legal voters 
of such township, upon ten days previous notice by the town clerk 
in his annual town meeting notice, stating the tools, implements, 
or machinery proposed to be purchased, together with the price 
thereof ; and said vote shall be by ballot, and shall read " for pur- 
chase " or " against purchase " and if a majority of all the votes 
so cast at said election shall be in favor of such purchase, then 
such purchase may be made. 

Tenth. — To cause to he erected and kept in repair, at the forks 
of crossing place of the most important public roads, a post and 
guide-boards, with plain inscriptions thereon in letters and figures, 
giving directions and distances to the most noted places to which 
such road may lead; to prevent thistles, burdock, cockle-burs, 
mustard, yeilow-dock, Indian mallow, and jimson weed from 
seeding, and to extirpate the same so far as practicable, and to 
prevent all rank growth of vegetation in the public highway, so 
far as the same may obstruct public travel ; and the said highway 
commissioners may, in their discretion, sink and construct wells, 
with a suitable pump or other suitable fixture, and a water-trough 
attached thereto, and keep the same in repair, for public use for 
watering teams, at the intersection of the most important roads 
in their towns or road districts ; and they may also adopt any 
other suitable and convenient mode of supplying water in troughs, 
conveniently situated on the public highways, for public use, at 
other points than at such intersections ; and the cost of such im- 
provements shall be paid out of the road and bridge funds of such 
town. 

[Eleventh.]— Cockle-burr weeds, etc., to be destroyed.] The com- 
missioners of highways in their respective towns,. shall be required 
to destroy or cause to be destroyed, all cockle-burr weeds or 
plants, before coming to maturity, that may be or grow in the 
highways of such town. [Act approved May 31, 1879. § 1. 

Penalty for failing to comply, etc.] The commissioners of high- 
ways, failing to comply with the provisions and requirements of 
section one of this act, shall be liable to a fine, of not less than 
five dollars nor more than twenty-five dollars for such offense, to 
be recovered in any proper form of action, before any justice of 
the peace in the county where such offense was committed, such 
fine when collected, to be paid to the treasurer of the highway com- 
missioners in the town where the offense was committed, to be used 
as road money in such town. [Act approved May 31, 1879. § 2. 



DTV. H.] COMMISSIONERS OF HIGHWAYS. 125 

11. Commissioners to choose treasurer — His duties— Bond.] 

§ 11. At the first meeting of the commissioners of highways, after 
the annual town meeting, they shall proceed to choose one of their 
number as treasurer. The treasurer so chosen shall receive and 
have charge of all moneys raised in the town for the support and 
maintenance of roads and bridges, excepting such portions of the 
moneys as are hereinafter directed to be paid to the authorities of 
incorporated villages, towns and cities. He shall hold such moneys* 
at all times subject to the order of the commissioners of high- 
ways, and shall pay them over upon their order, or a majority of 
said commissioners, and not otherwise. (1) He shall execute bond, 
with good and sufficient security, in such manner as the supervisor 
and town clerk shall determine, conditioned for the faithful dis- 
charge of his duties as such treasurer, and that he will honestly 
and faithfully account for and pay over, upon the order of the 
commissioners of highways, all moneys that shall come to his 
hands by virtue of his said office ; which bond shall be payable 
to the supervisor of the town and his successor in office, and be 
approved by the supervisor and town clerk, and filed in the town 
clerk's office,(2) but such treasurer shall not receive any additional 
compensation for such services, and he shall keep an account in a 

(1) Form of Order of Commissioners of Highways on Treasurer, 



State of Illinois, \ oa 

County, / ss - 

Town of , 18—. 

To the treasurer of the commissioners of highways of said town : 

Pay to , or order, the sum of dollars for [state briefly 

on what account.'] 

No. 

A. B., ) Commissioners 
C. D., ) of Highways. 

Mandamus is the proper remedy to enforce payment of orders regularly drawn 
by the highway commissioners on the township treasurer ; the duty of the township authorities 
to make payment is just as imperative upon the presentation of such orders as it would be after 
a judgment against the township. McArthur v. Township of Duncan, 34 Mich. K,., 27. 

(2) Form of Bond of Treasurer of Commissioners of Highways. 

Know all men by these presents, that we, T. R., as principal, and R. R. 
and C. H., as sureties, are firmly held and bound to W. D., supervisor of 

the town of , in the county of , Illinois, and to his successor in 

office, in the penal sum of dollars, which payment to be well and 

truly made, we do bind ourselves, our heirs, executors and administrators, 
jointly and severally, by these presents. 

The condition of this obligation is such, that whereas, the above boun- 

den T. R. was, on the day of , 18 — , duly chosen treasurer of the 

board of commissioners of highways of the said town of , and is 

about to enter upon the performance of the duties of said office. Now, 
therefore, if the said T. R. shall faithfully discharge his duties as such 
treasurer, and shall honestly and faithfully account for, and pay over upon 
the order of the commissioners of highways of said town, all moneys that 



126 ROADS AND BRIDGES. [DIV. II. 



book provided by the commissioners, of all moneys received and 
all moneys paid out, showing in detail to whom and on what 
account the same is so paid. 

12. Annual accounting of commissioners.] § 12. The com- 
missioners of highways, of each town shall render to the board of 
town auditors, at their annual meeting, for auditing the accounts 
of town officers, an account in writing, stating :(1) 

shall come to his hands by virtue of his said office, then this obligation 
shall be void, otherwise to be in full force. 

Witness our hands and seals this day of , A. D. 18—. 

T. R., [SEAL.] 

Approved by us, A. B., Supervisor, R. R., [seal.] 

C. D., Town Clerk. C. H., [seal.] 

This bond should be acknowledged as in case of other official bonds. 

The law does not fix tlie amount in which the treasurer's bond shall be taken. 
This would seem to be in the discretion of the supervisor and town clerk. It should be ample 
in amount to cover all money that may come to the hands of the treasurer. It is proper that the 
supervisor and town clerk should endorse their approval on the bond. 

A town supervisor cannot maintain an action on the bond of a commissioner 
of highways for neglect to deliver to his successor money which has been raised and paid over 
to him for the purpose of paying damages occasioned by the laying out of a highway where 
such highway has never been opened or worked, because the proceedings laying it out were 
void. Gailor v. Merrick, 42 Barb. R., 79. 

(1) Form of Account of Commissioners of Highways to be Rendered to 

Town Auditors. 

To the Board of Town Auditors of the Town of , in the County of 

, and State of Illinois: 

The annual account of the commissioners of highways of , for the 

year ending the — — day of , A. D. 18—, showeth as follows, to- wit: 

1st. The labor assessed in said town during the year ending on the 

day f ? A. D. 18 — , is days, and the amount of said labor actually 

performed is days, as appears by the returns made to us by the several 

overseers of highways in said town. 

2d. We have received for fines and commutations, and all other moneys, 
under the statute relative to highways, the sums following, to-wit : 

18—. 
Sums received for penalties imposed on following named persons : 

John Jackson $5.00 

Jonathan Jones 5.00 

$10.00 
3d. The improvements necessary to be made on the roads and bridges in 

said town, are as follows : \J\ere state what improvements are necessary]. 

We estimate the probable expense of making such improvements, beyond 

what the labor to be assessed this year, and the road tax will accomplish, 

,at dollars. 

4th. The expenses and damages in consequence of laying out, altering 

or discontinuing roads during the year ending as aforesaid, amount to the 

sum of dollars, as follows : 

To total expenses in laying out road leading from [here describe 

the road,] $7.00 

Damages allowed on same 40.00 

Total expenses in altering and discontinuing part of road from [here 

describe the road,] ~ $8.00 

Damages allowed on same 50.00 



©IV. II.] COMMISSIONERS OF HIGHWAYS. 127 

First. The labor assessed and performed in such town. 

Second. — The sums received by such commissioners, for fines 
and commutations and all other moneys received under this act. 

Third. — A statement of the improvements necessary to be made 
on such roads and bridges, and an estimate of the probable ex- 
pense of making such improvement, beyond what the labor to be 
assessed in that year and the road tax will accomplish. 

Fourth. — Also, a statement in writing, of all expenses and dam- 
ages in consequence of laying out, altering or discontinuing roads. 

Fifth. — Also a statement of the amount received from the collec- 
tor of the town, or from any other source, up to the time of such 
statement, and the manner in which the same, if any sum, has 
been paid out and expended, to whom and on what account. 

13. Meetings of commissioners — Record to be kept.] §13. 

The commissioners of highways of each town shall meet, on the 
•second Tuesday after the annual town meeting in each year, at 
the town clerk's office, and afterwards at such other times and 
places as they shall think proper. Said commissioners shall 
•keep a correct record of their proceedings at all meetings.(l) 

5th. We have received of the collector of the town, up to the time of 

rendering this account, the sum of eighty-four dollars, and have paid out 

the same as follows : 

Paid to A. B., C. D., and E. F., for three days' labor, each at $1.00 

per day, in repairing highways at [state location,'] $9.00 

Paid to J. C, in full, on his contract for building bridge at [state lo- 
cation of bridge,] 75.00 

$84.00 

[If any balance remain, say:] leaving in our hands a balance of , on 

♦account of money received from the collector. 

RECAPITULATION. 

To amount received from fines, etc., $10.00 

11 " " " collector 84.00 

$94.00 
By total amount paid out 84.00 

Balance on hand $10.00 

Given under our hands this day of , A. D. 18—. 

H. R., ) Commissioners 
C. P., I of 

M.H.J Highways. 

A town has no authority, however, to raise money to aid in the construction of a road which 
bv law is to be made at the expense of the county; 'consequently a tax laid by the town for the 
purpose of collecting the money, is illegal and void. So held in Massachusetts. Pearson v. 
Goofov. 17 Pick. R., 396. 

(1) Iiike other official bodies, commissioners of liigliways would have no authority 
to act individually and bind the town, unless expressly authorized to do so for some special purpose. 
'They can, in general, perform no official acts except as a board at a meeting duly convened. 



128 ROADS AND BRIDGES. [Dry. IK 

14. Assessment of road labor and tax.] § 14. The town clerk 
shall deliver the lists filed by the overseers to the commissioners 
of highways of the town, who shall proceed to ascertain, estimate 
and assess the highway labor and road tax to be performed and 
paid in their town the next ensuing year.(l) 

15. Road labor— Who liable— Time.] § 15. Every able-bodied 
male inhabitant, being above the age of twenty-one years and 
under the age of fifty (excepting paupers, idiots, lunatics, and 
such others as are exempt by law), shall be required to labor on 
the highways in their respective road districts, not less than one 
nor more than three days in each and every year. (2) 

HIGHWAY LABOR AND ROAD TAX. 
Section. 

14. Assessment of road labor and tax. 

15. Road labor — Who liable — Time. 

16. Tax of town or village, etc. 

17. Road labor and tax list. 

18. Copies to be given to overseers. 

Corns, of Randolph Co. v. Jones, Breese R., 237; Lynch v. HartweU, 8 Johns. R.. 422. When a meet- 
ing is desired, all the commissioners should have notice, whereupon, if a majority are present,, 
they have power to act. Babcock v. Lamb, 1 Cowen R., 238 ; Commissioners v. Swan, 65 Barb. R., 210. 
The provision requiring the commissionei s to keep a record of their proceedings 
requires that they shall have a record book for that purpose. The requirement that they shall 
keep a record of their proceedings at all meetings would include proceedings in laying out, alter- 
ing and discontinuing roads, as well as other subjects. 

(1) The -words " next ensuing year » as used in the Road Law should be construed as 
referring to the year immediately succeeding the date of the delivery of the list to the commis- 
sioners by the town clerk. Opinion Att'y Gen. Edsall, February 25, 1875. 

(2) In the absence of some lawto the contrary, it is held that the township authorities 
may control the road labor of the inhabitants of an incorporated city or village situated within 
the township ; that an incorporated city or village is a part of the township within which it is 
situated, and is deemed as much a part thereof as the township is a part of the county; that the 
town authorities under township organization therefore have the right to impose and collect a 
poll tax of all the inhabitants of the town, whether residing within or out of the city or village. 
O Kane v. Treat etal.,25 111. R., 557. 

But where complete jurisdiction is given to an incorporated city or village in regard 
to the improvement of streets therein, the general road law does not apply, and the township- 
authorities have no control in this respect. Fox v. City of Rockford, 38 111. R., 451. 

Where the inhabitants assessed a poll tax were required to work out the same 
in their respective road districts, where an incorporated village comprised a road district of the 
township, it was held that the inhabitants assessed for road labor in said village could not be 
compelled by the township authorities to work out their poll tax outside of the corporation in 
which they lived, it being a separate road district. Town of Pleasants v. Kost, 29 111. R., 490. 

It is competent for the legislature to provide for a poll tax and for compelling pay- 
ment thereof, either in labor or money, and a penalty may be prescribed for non-payment of the 
assessment. Foxy. City of Rockford, 38 111. R., 451. 

Labor assessed for the repair of roads, commonly called a poll tax, is not a tax within 
the meaning of the constitution concerning taxation, hence an exemption as to persons in this 
regard is not unconstitutional. Town of Pleasants v. Kost, 29 111. R., 495; Fox v. City of Rockford, 
38 111. R., 451. Such a tax is not a capitation tax. Fox v. City of Rockford, 38 111. R., 451. 

The summoning of the people once a year to put the highways of their neigh- 
borhood in order, is, to some extent at least, in the nature of a police regulation. Cooley ort 
Taxation, p. 397, and cases cited. 

A poll tax can only be assessed on inhabitants, Herriman v. Stowers, 43 Maine R., 497. 

Trustees of schools, school directors or other school officers performing like du- 
ties are exempted from road labor. Rev. Stat., 972, § 72. This has reference to poll tax only,. 
See McDonald v. Madison County, 43 111. R., 23. Persons enrolled in the active militia are like- 
wise exempt from payment of road labor and poll tax. Laws 1879. p. 197. 



DIY. U J HIGHWAY LABOR AND ROAD TAX 129 



19. Overseers to add names to list. 

20. Credits for labor on private roads. 

21. Notice of tax, and that same may be worked out. 

22. Penalty for neglect of duty. 

23. Overseers of highways— How chosen — Term of office. 

24. Duties of overseers. 

25. Refusal to serve, etc.— Vacancy — How filled. 

26. Notice of appointment to fill vacancy. 

27. Penalty against overseers. 

28. Notice to perform road labor. 

29. Days to be worked — Commutation. 

30. Payment of commutation. 

31. Teams may be required. 

32. Substitute. 

33. Idlers, etc. — Penalty. 

34. Penalty for neglect, etc., to appear. 

35. Complaint of overseer. 

36. Summons. 

37. Trial — Execution — No exemption. 

38. Collection of execution. 

39. Application of fine. 

40. Excuse not to exempt from labor. 

41. Notice of road tax— Tax to be received in labor or money. 

42. Receipt. 

43. Delinquent road tax — Return. 

44. Penalty for neglect to return. 

45. When road labor to be worked out. 

46. Overseer's annual return. 

47. Account — Moneys paid to successor. 

48. Penalty for neglect. 

49. Supervisors to lay delinquent list before county board. 

50. Levy of delinquent tax. 

51. Compensation of overseers. 

52. When road tax may be collected in money only. 

53. Plat of road districts. 

54. County clerk to designate district on tax book. 

55. Abstract of tax due districts. 

56. Tax to be paid to districts. 

16. Tax of town or Tillage, etc.] § 16. The commissioners of 
highways of each town, shall annually ascertain, as near as prac- 
ticable, how much money must be raised by tax on real and per- 
sonal property, for the making and repairing of roads only, to 
any amount they may deem necessary, not exceeding forty cents 
on each one hundred dollars worth, as valued on the assessment 
roll of the previous year : Provided, that the tax on the property 
levied for road purposes only, lying within an incorporated vil- 
lage, town or city, in which the streets and alleys are under the 
care of the corporation, shall be paid over to the treasurer of such 
village, town or city, to be appropriated to the improvement of 
roads, streets and bridges, either within or without said village, 
town or city, and within the township, under the direction of the 
corporate authorities of such village, town or city: Provided, 
further, that when any of said tax is expended beyond the limits 

9 



130 ROADS AND BRIDGES. [DIY. H. 

of said village, town or city, it shall be with the consent of the 
road commissioners of the town. And provided, further, that the 
authorities of such incorporated town, city or village may at any 
time direct the collector not to collect the tax so levied within 
the limits of such incorporated town, city or village. (1) 

17. Road labor and tax list.] § 17. The commissioners of 
highways shall affix to the name of each person named in the 
lists furnished by the overseers, the number of days assessed to 
each person for highway labor, and they shall make a list for 
each district, containing a description of each tract of land in the 
district and the name of the owner, if known, and also the names 
in alphabetical order of the personal property tax payer, and 
shall set opposite each tract of land the valuation thereof, as 
taken from the assessment roll of the previous year, and opposite 
each tax payers name the amount of his personal assessment, as 
taken from said roll, and opposite each valuation and assessment 
they shall extend the road tax assessed thereon in a separate 
column. The lists so prepared shall be subscribed by the com- 
missioners, and deposited with the town clerk, to be filed in his 
office. (2) 

(1) The Commissioners have like-wise authority to levy a tax for bridges and 

various other purposes iu a subsequent portion of this act. See post, \ 119. 

It is the duty of the collector to pay to the treasurer of an incorporated city, village 
or town, that portion of the taxes levied in the town, by the commissioners of highways, on the 
taxable property within the city, for road purposes, and if he refuses to pay the same to the city, 
it may be collected by suit on his bond. Baird et al. v. The People use, etc., 83 111. R., 387. 

(2) The act of the commissioners in assessing highway labor and road tax should 
be reduced to writing. It may be in the following form: 

Form, of Order of Commissioners Assessing Highway Labor and 

Road 2 y ax. 

County, \ 

Town of ,| ss - 

At a meeting of the commissioners of highways of said town of , at 

the town clerk's office, in said town, on the day of , A. D. 18 — , 

the said commissioners having proceeded to ascertain, estimate and assess 
the highway and road tax to be performed and paid in said town the ensu- 
ing year, do estimate and assess two days' highway labor to each and every 
male inhabitant in said town, liable to be assessed for highway labor, to 
be performed in said town the ensuing year; and we do assess a road tax 
of tiventy cents on each one hundred dollars worth of real estate and per- 
sonal property liable to taxation of said town, as valued on the assessment 
roll of the past year, to be paid in said town the ensuing year. 

Witness our hands, this - — day of , A. D. 18—. 

N. P., ^ Commissioners 

W. C, \ of 

J. W.,J Highways. 

Form of List of Assessment of Highway Labor, 

County, 1 

Town of J 88 * 

We, the commissioners of highways of said town of , having pro- 



DIY. II. ] HIGHWAY LABOR AND ROAD TAX 131 

18. Copies to be given to overseers.] § 18. The commission- 
ers shall direct the clerk of the town to make a copy of each list, 
and shall subscribe such copies, after which they shall cause the 
several copies to be delivered to the respective overseers of high- 

ceeded to ascertain, estimate and assess the highway labor and road tax to 
be performed and paid in said town the ensuing year, have made out the 
estimate and assessment for road district number one in said town, to- wit: 
The inhabitants of said town, assigned to said road district, are assessed 
for highway labor as follows, viz.: 

NAMES. NO. OF DAYS. 



H. S., 
I. H., 



Given under our hands, this day of , A. D. 18—. 

R. L., ) Commissioners 
E. S., [ of 

H. P., J Highways. 

The town clerk will make a copy of the foregoing list. 

R. L., ) Commissioners 
E. S., > of 

H. P., ) Highways. 

Form of Alphabetical List of Personal Property Tax Payers 

county, u s . 



Town of 

The following comprises the names in alphabetical order of the personal 

property tax payers in road district number in said town of > 

Opposite to each tax payer's name is the amount of his personal assessment 
as taken from the assessment roll of the previous year, and extended 
against each is the road tax thereon, in a separate column, assessed by the 
commissioners of highways of said town : 



NAME OF PERSONAL PROPERTY TAX PAYER. 


AMOUNT OF PERSONAL 

ASSESSMENT. 


AMOUNT OF ROAD TAX 

ASSESSED. 


Adams, Jonathan 
Brooks, William 


$1000 
500 


00 

00 


$2 
1 


00 
00 



Given under our hands this day of , A. D. 18—. 

R. L., ^ Commissioners 
E. S., V of 

H. P., J Highways. 

The town clerk will make a copy of the foregoing list. 

R. L.,) Commissioners 
E. S., \ of 

H. P., J Highways. 

Tlie personal property road tax of an individual, if not paid, should be returned with 
his land tax, lo be levied upon the land, and collected and paid over to the commissioners the 
same as the land tax. See post, sections 43 and 50. Where the individual has no land assessed, 
the remedy for the recovery of his personal tax is, no doubt, by an action in the name of the town, 
to be prosecuted in the same manner as ordinary actions; and this is an appropriate remedy to 
enforce the payment of a tax, without regard to the remedy given by distress. See Ryan v. Gal- 
latin Co., 14 111. B.., 83; Glancey v. EUiott, Id., 458; Dunlap v. Gallatin Co., 15 Id., 9. 



Form of List of Land Boad Tax Assessment. 



County, 



Town of - 

The following is a list containing a description of each tract of land in 



132 



ROADS AND BRIDGES. 



[div. n. 



ways of t"he several districts in which the highway labor is as- 
sessed. One copy for each overseer shall contain the name and 
number of days assessed to each person, the other the real and 
personal property road tax. 

19. Overseers to add names to list] § 19. It shall be the duty 
of the overseers to add the names of persons left out of any such 
list, and of new inhabitants, and to rate the persons so added in 
the same proportion to work on the highways as others rated by 
the commissioners on such list, subject to an appeal to the com- 
missioners. 

20. Credits for labor on private roads.] §20. It shall be the 
duty of commissioners of highways [of] each town to credit such 
persons as live on private roads, and work the same so much on 
account of their assessment, as such commissioners shall deem 
necessary to work such private road, or to annex such private road 
to some of the highway districts. 

21. Notice of tax, and that same may be worked out.] § 21. 
The town clerk shall, within ten days after the commissioners of 
highways have filed in his office the amount of road tax assessed on 
the real and personal estate of the towns, post a notice on the 
outer door of the house where the town meeting was last held, and 
two other public places in said town, stating the amount of road 
tax assessed on each one hundred dollars worth of the real and 
personal estate of the town, and that all persons interested can 
pay the same in labor on the highways, under the direction of the 



road district number 



in said town of 



and the names of the 



owners thereof, as far as known, with the valuation thereon set opposite 
each tract, as taken Irom the assessment roll of the previous year, opposite 
which is extended the road tax thereon in a separate column as assessed by 
the commissioners of highways of said town : 



NAME OP OWNER. 


DESCRIPTION OF LANDS. 


NO.. 
ACRES. 


VALUE 
PER ACRE. 


TOTAL 
VALUE. 


am't 

TAX. 


H. S. 

8. C 


N. W. % Sec. 11 
S.W.# " " 


160 

160 


$20 00 
20 00 


$3,200 00 
3,200 00 


$6 40 
6 40 



Given under our hands this day of 



-, A. D. 18—. 

R. L.,1 Commissioners 
E. S., \ of 

H. P., J Highways. 
The town clerk will make a copy of the foregoing list. 

R. L., ") Commissioners 
E. &.,[ of 

H. P., J Highways. 

The law requires, as will be seen, (§ 17 of this act), that the commissioners shall make a list of 
the personal property tax payers for each road district in alphabetical order. This will require 
that the names of persons who are assessed for personal property shall be comprised in such list, 
although they may be also assessed for real estate, whence it follows that there should be two 
separate lists, one showing the names ol all persons having personal property assessed and the 
other comprising the real estate tax, with the names of the owners, if known. 



DIY. II.] HIGHWAY LABOR AND EOAD TAX. 133 

overseer of highways, in the district where the land or personal 
property is situated. (1) 

22. Penalty for neglect of duty.] § 22. If the commissioners of 
highways shall refuse or neglect to perform any of the duties en- 
joined on them by this act, they shall severally forfeit not less than 
ten dollars nor more than fifty dollars, and may be proceeded 
against, severally or jointly, for the recovery of such forfeiture 
before any justice of the peace in the proper county having juris- 
diction. 

2 3. Overseers of highways— Ho w chosen— Term of office. ] § 23. 
There shall be chosen at the annual town meeting in each town, 
as many overseers of highways as there are road districts in the 
town ; and each overseer of highways, so chosen, shall be a resi- 
dent of the road district for which he was elected, and shall hold 
his office for one year. 

24. Duties of overseers.] § 24 It shall be the duty of over- 
seers of highways in each town : 

First. — To repair and keep in order the highways within their 
several districts for which they shall have been elected. (2) 

Second. — To warn all persons, from whom road labor is due, to 
work on the highways at such times and places, within their sev- 
eral districts, as they may think proper. The overseers of high- 
ways may contract with persons owing poll tax for road purposes, 
to perform a certain amount of labor on any road or bridge in 
their town or road district for the amount of such tax ; and if the 
work is done within the time that the money should have been 
paid, the overseers shall give such person a receipt for such labor 
done or performed. (3) 

(1) Form of Notice of Assessment of Property Tax. 

Notice is hereby given that the amount of road tax assessed on each one 

hundred dollars' worth of real and personal estate of the town of , in 

the county of , for the ensuing year, is twenty cents, and that all per- 
sons interested can pay the same in labor on the highways, under the 
direction of overseers of highways in the district where the land or per- 
sonal property is situated. jj ^ Town Clerk 

Dated at , this day of , 18 — . 

(2) An overseer of highways is hound to remove obstructions from the highways 
within his district, although not specially directed to do so by the commissioners. McFadden r. 
Kingsbury, 11 Wend. R., 667. 

The commissioners of highways have power to require the overseers to per- 
form labor upon such parts of the highway as in the judgment of the commissioners seems best 
for the public good. The overseers are required under penaltv to obev the orders and direc- 
tions of the commissioners, in the repair of highways in their district. Jlizer v. Town of RockfordL 
86 111. R., 325. 

(3) Form of Overseer's Receipt for Poll Tax Worked Oat by Contract. 
County, 



Town of 

Received of O. B., dollars, in full payment for amount of poll tax 

assessed against him by the commissioners of highways of the town 



134 ROADS AND BRIDGES. [DIV. IL 

Third. — To collect all fines and commutation money, and to exe- 
cute all lawful orders of the commissioners of highways.(l) 

Fourth. — To deliver to the clerk of the town, within ten days 
after their election or appointment, a list, subscribed by such over- 
seers, of the names of all the inhabitants in his road district who 
are liable to work on highways. (2) 

25. Refusal to serve, etc.— Yacancy— How filled.] § 25. If any 

person chosen or appointed to the office of overseer of highways, 
shall refuse to serve or if his office shall become vacant, the com- 
missioners of the highways of the town shall, by warrant, under 
their hands appoint some other person in his stead; and the 
overseers so appointed shall have the same powers, be subject to 
the same orders and liable to the same penalties as overseers chosen 
at the town meeting.(3) 

of ? f or the year 18 — ; the same being for work performed by him on 

the highway, in road district No. , in said town, by contract with the 

overseer thereof. L . M ., Overseer of Highways, Dist. No. — . 

Ijahor assessed for highway purposes can only be bestowed upon such roa'ds as 
are established by law. When lands are dedicated by the owner to public use as streets, they do 
not become public highways until accepted as such by the public authorities. Oswego v. Oswego 
Canal Co., 2 rfelden R.. 263. 

A highway overseer has no authority to expend money committed to him for the repair of 
highways in changing the line of travel, and constructing a new road outside of that established. 
Todd v. Rowley, 8 Allen R., (Mass.), 51. But this probably does not apply to the case of a 
slight departure from the established road from necessity to avoid a formidable obstruction. 

It is a question whether, after a road has been laid out, it may be abandoned by mere non- 
user, so as to relieve the town authorities from the duty of keeping it in repair. When a road is 
used to any extent, although it may be obstructed by movable bars across it, it will not be con- 
sidered as abandoned. State v. A/stead, 18 N. Hamp. R., 59. 

(1) The overseer is not obliged, nor is lie authorized to procure a scraper or plow 
to use on the highways, without being directed and empowered to do so by the commissioners. 
McFadden v. Kingsbury, 11 Wend. R., 667. 

(2) Form of Overseer's List of Inhabitants Liable to Work on Highways. 

County, 

Town of , 

I, J. H., overseer of highways for road district, number— — , in said 

town of , do certify that the following is a true and correct list of all 

the inhabitants in said road district, who are liable to work on high- 
ways, viz. [Here insert the names']. 

Subscribed by said overseer this day of , A. D. 18 — . 

J. H., Overseer of Highways. 

(3) Form of Appointment of Overseer of Highways in case of Vacancy. 
County, \ 

Town of , / ss * 

"Whereas, a vacancy has occurred in the office of overseer of highways, 

for road district, No. , in said town of , by reason of the removal 

[or, refusal to serve, or deatn, as the case may be] of , elected to said 

office: Now, therefore, we, the undersigned commissioners of highways 
of said town, do hereby appoint M. P., to be overseer of highway of and 
for said road district, No. - — , in said town, to fill said vacancy. 

Given under our hands this day of , A. D. 18—. 

E. M., ) Commissioners 

A. W., \ of 

J. B., J Highways. 



DIY. II. J HIGHWAY LABOR AND EOAD TAX. 135 

26. Notice of appointment to fill vacancy.] § 26. The commis- 
sioners making the appointment shall cause such warrant to be 
forthwith filed in the office of the town clerk, who shall give notice 
to the person appointed as in other cases,(l) 

27. Penalty against overseers.] § 27. Every overseer of high- 
ways who shall refuse or neglect to perform any of the duties here- 
inbefore enumerated, or which may be lawfully enjoined on him 
by the commissioners of highways of his town, shall for every such 
refusal or neglect, forfeit the sum of ten dollars, to be sued for by 
the commissioners of highways of the town, and when recovered 
to be applied by them in making and improving the roads and 
bridges therein. (2) 

28. Notice to perform road labor.] § 28. It shall be the duty 
of overseers of highways to give at least three days notice, either 
verbally or by leaving a written notice at their place of residence, 
to all persons assessed to work on highways, and residing within 
the limits of their respective districts, of the time and place, when 
and where they are to appear for that purpose, and with what 
implements ; but no person, being a resident of the town, shall be 
required to work on any highway other than in the district in 
which he resides, except he resides in a district on a town line, 
which district belongs to an opposite town, and unless he shall 
elect to work in same district where he has land ; and in said case 
he may, with the approbation of the commissioners of highways, 
apply the work assessed in respect to such land in the district in 
which the same is situated : Provided, if the overseer of highways 
fail to perform their duty, the commissioners of highways shall 
have power to perform such duties, or cause the same to be per- 
formed, under such rules as they may prescribe.(3) 

29. Days to be worked— Commutation.] § 29. Every person 
liable to work on the highways shall work the whole number of 

(1) Form, of Notice to Person Appointed Overseer. 

To S. M., of the Town of , County of , State of Illinois: 

You are hereby notified that on the day of , 18 — , the commis- 
sioners of highways of said town, by warrant under their hands, appointed 
you as overseer of highways of road district No. , to fill a vacancy oc- 
curring therein, which warrant has been duly filed in my office. 

Given under mv hand this day of , 18 — . 

A. B., Town Clerk. 

(2) An overseer of highways is not liable to a private action for any error of 
judgment in the execution of his trust. He is only responsible for any neglect or refusal under 
the section of the act which subjects him in such a case to a penalty. Freeman v. Cornwell, 10 
Johns. R., 470. If, however, he acts maliciously or oppressively, it is otherwise. 5 Johns. R., 125. 

(3) The provisions of the above section refer to persons assessed to work on 

highways. This relates to poll tax only. The time and mode of working out the land and per- 
sonal property tax is provided by § 41, post. 

In case the overseer thinks proper to give -written notice to persons assessed to 
work on the highways, the following may be the form of such notice. 



136 BOADS AND BRIDGES. [DIV. H. 

•days for which lie shall have been assessed ; but every such per- 
son, other than an overseer of highways, may elect to commute 
for the same, or for any part thereof at the rate of one dollar pel 
day ; in which case such commutation money shall be paid to the 
overseer of highways of the district in which the person commut- 
ing shall reside, to be applied and expended by such overseer in 
the improvement of the roads and bridges in the same district. 

30. Payment of commutation.] § 30. Any person intending 
to commute for his assessment, or any part thereof, shall, within 
three days after he shall be notified to appear and work on the 
highways, pay the commutation money for the work required of 
him by such notice ; and the commutation shall not be considered 
as complete until such money be paid. 

31. Teams may be required.] § 31. Every overseer of high- 
ways shall have power to require a team or a cart, wagon or plow, 
with a pair of horses or oxen, and a man to manage them, for any 
person having the same within his district, who shall have been 
assessed two days or more, and who shall not have commuted for 
his assessment ; and the person furnishing the same, upon such 
requisition, shall be entitled to a credit of two days for each days 
service therewith. 

32. Substitute.] § 32. Every person assessed to work on the 
highways, and named to work, may appear in person, or by an 
able-bodied man as a substitute, and the person or substitute shall 
actually work eight hours in each day, under a penalty of twenty- 
five cents for every hour such person or substitute shall be in 
default, to be imposed as a fine on the person assessed. 

33. Idlers, etc.— Penalty.] § 33. If any person, after appear- 
ing, remain idle, or not work faithfully, or hinder others from 



Form of Notice to Person to Work Poll Tax on the Highways, 

To Mr. D. R.: 

Sir: — You having been assessed a poll tax of days, to be worked on 

the highway in road district No. , in the town of , are hereby 

notified to appear with [state with what implements] on the day of 

, 18 — , at o'clock in the forenoon, at [state the place], for the 

purpose of working said highway poll tax. 

Dated this day of , A. D. 18—. 

J. S., Overseer of Highways. 

The person, assessed a road tax is not liable until he has had notice to work ; but 
he may waive the notice either expressly or by acts, from which the waiver may be inferred. 
McDonald v. Madison County, 43 111. R., 24. 

The law under which road labor is assessed does not require a residence, but 
Bimply inhabitancy. See § 15, ante p. 128; Dale v. Irwin, 78 111. R., 170 

The proviso to Sec. 38, contemplates, that if the overseers fail to perform any of their 
duties prescribed in said section or in the preceding provisions, the commissioners of highways 
shall cause the same to be performed. The object being to place the highways of the town under 
the general supervision of the commissioners, and to ensure the execution of the law. 



DIV. H.] HIGHWAY LABOR AND ROAD TAX. 137 

working, such offender shall, for every offense, forfeit to the town 
the sum of two dollars. 

34. Penalty for neglect, etc., to appear.] § 34. Every person 
so assessed and duly notified, who shall not commute, and who shall 
refuse or neglect to appear, as above provided, shall forfeit to the 
town, for every days refusal or neglect, the sum of two dollars 
($2.00). If he was required to furnish a team, carriage, man or 
implement, and shall refuse or neglect to comply, he shall be fined 
as follows : 

First. — For wholly failing to comply with such requisition, four 
<Wllars ($4.00) for each day. 

Second. — >For omitting to furnish a pair of horses or oxen, one 
dollar and fifty cents ($1.50) for each day. 

Third, — For omitting to furnish a man to manage the team, two 
dollars ($2.00) for each day. 

Fourth. — For omitting to furnish a wagon, cart or plow, seventy- 
five cents (75 c-100) for each day. 

35. Complaint of overseer.] § 35. It shall be the duty of 
every overseer of highways, within six days after any person 
assessed and notified shall be guilty of any refusal or neglect, for 
which a penalty or fine is prescribed in this act, unless a satisfac- 
tory excuse shall be rendered to him for such refusal or neglect, 
to make complaint, on oath, to any justice of the peace of the 
county : " Provided, if the overseers of highways fail to perform 
their duty, as prescribed in this section, the commissioners of high- 
way shall have power to perform such duties."(l) 

36. Summons.] § 36. The justice to whom such complaint 
shall be made shall forthwith issue a summons, directed to any 
nonstable of the county, requiring him to summons such delinquent 
to appear within five days before such justice, according to law, 
for such refusal or neglect.(2) 



(1) This cow plaint need not necessarily l>e In -writing $ it will be a sufficient com- 
pliance with the law if made on oath, in which case the complaint may be recited in the sum- 
mons. The complaint of the overseer will be presumed to be true until the contrary appears. 
The justice must proceed upon it as such, and if the proceedings prove to be unauthorized, the 
overseer is liable. 9 Johns. R„ 229. 

(2) Form of Summons for Refusing to Work. 

State of Illinois, \ CQ 

County, / ss - 

The people of the state of Illinois to any constable of said county, greet- 
ing: 

You are hereby commanded to summon A. B. to appear before me 

at , on the day of , 18—, at o'clock — M., to answer 

the complaint of C. D., overseer of highways of district No. , in the 

town of , in said county, on oath, for a failure to pay a certain de- 



138 ROADS AND BRIDGES. [DIV. H. 

37. Trial — Execution— No exemption.] § 37. On the day of 

trial the justice shall proceed to hear and determine the case 
according to law, for the offense complained of, and shall forthwith 
issue an execution under his hand and seal, directed to any con- 
stable of the county where such delinquent shall reside, command- 
ing him to levy such fine, with the costs of the proceeding, of the 
goods and chattels of such delinquent. No personal property 
shall be exempt from levy of attachment or execution when the 
judgment is for commutation of road or street labor. Provided, 
the court rendering the judgment shall find that the same is for 
road or street labor, which finding shall be expressed on the 
record of said judgment and indorsed upon the execution when 
issued,(l) 

38. Collection of execution.] § 38. The constable to whom 
such execution shall be delivered, shall forthwith collect the 
moneys therein mentioned. He shall pay the fine, when col- 
lected, to the justice of the peace who issued the execution, who 
is hereby required to pay the same to the overseer who entered 
the complaint, to be by him expended in improving the roads and 
bridges in the district of which he is overseer. 

39. Application of fine.] § 39. Every fine collected for refusal 
or neglect to appear and work on the highways, shall be set off 
against his assessments, or personal labor tax, upon which it was 
founded, estimating every two dollars collected as a satisfaction 
for one day's work. 

40. Excuse not to exempt from labor.] §40. The acceptance 
by an overseer of any excuse for refusal or neglect shall not, in 
any case, exempt the person excused from commuting for or 
working the whole number of days, for which he shall have been 
assessed during the year. 

41. Notice of road tax— Tax to be received in labor or money.] 
§ 41. Every overseer of highways shall give at least three days* 

mand, not exceeding two hundred dollars, incurred as a fine, and hereof 
make due return as the law directs. 

Given under my hand and seal this day of , A. D. 18—. 

S. O., [seal.] 
Justice of the Peace. 

(1) In proceedings under the al»ove section the suit will be the same as between individ- 
uals for an ordinary money demand. The town should be entered as plaintiff by name, and the- 
person proceeded against as defendant. Ewbanks v. Ashley, 36 111. R., 177; Jacksonville v. Black, 
36 111. R., 507. See post, l 60. 

Form of Docket Entry. 

[Proceed in the usual form of money demand in debt or assumpsit, add- 
ing the following :] 

u And the court doth find that said demand is for road labor due from 
said defendant, whereupon it is considered by the court," etc. 

The execution may be in the general form prescribed by the statute. See Haines' Treatise, 
title " Execution." 



DIV. II.] HIGHWAY LABOE AND ROAD TAX. 139 

notice to each person residing in his district, against whom a land 
or personal property road tax is assessed, either personal or in 
writing, left at his nsnal place of abode of the time when and 
the place where he may appear and pay his road taxes in labor 
and with what implements ; and he may require of all persons 
appearing to pay their taxes in labor to furnish a spade, shovel, 
axe or hoe, and if any such person be the owner of a team, plow, 
wagon, cart or other implement useful for working the highways, 
he may require such person to furnish any of them if his road 
taxes are not less than three dollars. And every such person 
may appear at the time and place and with such implements and 
teams as the overseer in his notice shall have required, and work 
in person or by an able bodied substitute ; and every such per- 
son who shall so appear and work, agreeable to the directions of 
such overseer of the highways in his district shall be credited on his 
road tax one dollar and twenty-five cents for every day he shall 
actually work eight hours and at that rate for less time, and 
twenty-five cents a day for every wagon or plow, and one dollar 
a day for each yoke of oxen, and one dollar and twenty-five cents 
a day for each span of horses or mules, he shall furnish agreea- 
bly to the requirements of said overseer ; Provided, that any 
person may elect to pay such tax to the overseer in money : Pro- 
vided, further, if the overseers of highways fail to perform their 
duty, the commissioners of highways shall have power to perform 
such duties, or cause the same to be performed under such rules 
as they may prescribe. (1) 

42. Receipt.] § 42. It shall be the duty of the overseer 
of highways, when such land tax has been paid, either in money 
or labor, to write the word " paid " distinctly against each name 
or tract on his list, on which the same has been paid, and give a 
receipt for the same, whether paid in labor or money, when de- 
manded. 

43. Delinquent road tax — Return.] § 43. Every overseer of 
highways shall deliver to the supervisor of his town, and in Cook 
county to the county board, at least ^.ye days previous to 
the annual meeting of the board of supervisors, the lists fur- 
nished by the commissioners of highways, containing the land 
and personal property road tax, with an affidavit thereto, sworn 
to before the supervisor of the town, or some justice of the 
peace of the county, that on all tracts of land on such list, oppo- 
site which the word "paid" is written, such tax is paid, and 
that on all tracts of land on such list, opposite which the word 

(1) When tlie overseer of highways desires to give notice in. writing, to warn 
persons to work out property tax, the form given for notice in case of poll tax can be used by- 
varying to suit the occasion. See ante p. 136. In place of the words "a poll tax of —days," in said 
form, insert the words "a property tax of $— ," otherwise the form may be substantially the same* 



140 ROADS AND BRIDGES. [DIY. n. 

"paid" is not written, such tax is due and remains unpaid, ac- 
cording to the best of his knowledge and belief.(l) 

44. Penalty for neglect to return.] § 44. If any overseer shall 
refuse or neglect to deliver such list to the supervisor, as pro- 
vided in the last preceding section, or shall neglect or refuse to 
make the affidavit, as therein directed, he shall, for every such of- 
fense, forfeit the sum of five dollars, and also the amount of taxes 
remaining unpaid, to be recovered by the commissioners of high- 
ways of the town, to be applied by them in improving the roads 
and bridges of such town. 

45. When road labor to be worked out.] § 45. It shall be the 
duty of every overseer of highways to have at least three-fourths 
of the road labor assessed in his district, worked out or actually 
expended on the highways, previous to the first day of September 
in every year. 

46. Overseer's annual return.] § 46. Every overseer of high- 
ways shall, on the second Tuesday next preceeding the time of 
holding the annual town meeting in his town, within the year for 
which he is elected or appointed, render, under oath, to one of 
the commissioners of highways of the town, an account in writ- 
ing containing : — (2) 

First. — The names of all persons assessed to work on the high- 
ways in the district of which he is overseer. 

Second. — The names of all those who have actually worked on 
the highways, with the number of days they have actually worked. 



(1) Form of Affidavit of Overseer of Highways upon Return of List to 

Supervisors 

State op Illinois \ 

County. / ss - 

J. W., overseer of highways for road district number , in the town 

of , in said county, being duly sworn, doth depose and say, that on 

all tracts of land described in the annexed list, opposite which the word 
*• paid " is written, such tax is paid, and that on all tracts of land on such 
list opposite which the word " paid" is not written, such tax is due and 
remains unpaid, according to the best of his knowledge and belief. 

J. W. 
Subscribed and sworn to before me, this) 

day of , A. D. 18—. \ 

J. L., Justice of the Peace. J 

(2) Form of Overseer's Annual Account, 
State of Illinois, 



County, \ ss. 



Town of 

I, Li. G., overseer of highways for road district No. , in said town 

of , hereby render to the commissioners of highways of said town, 

the following account, to wit: 



DIV. II.] HIGHWAY LABOR AND ROAD TAX. 141 

Third. — The names of all those who have been fined, and the 
sums in which they have been fined. 

Fourth. — The names of all those who have commuted, and the 
manner in which the money arising from fines and commutations 
have been expended by him. 

Fifth. — The amount of uncollected road tax which he has re* 
turned to the supervisors of the town, as required in section fort}- 
three of this act. 

47. Account— Money paid to successor.] § 47. Every such 
overseer shall also, then and there, render an account, in writing, 
of all moneys in his hands by virtue of his office, and shall also 
pay over the same to his successor in office. 

48. Penalty for neglect.] § 48. If any overseer shall refuse or 

1st. The names of all persons assessed to work on the highways in said 
district, are as follows : 

[Here insert the names.] 

2d. The names of all those who have actually worked on the highways, 
with the number of days they have actually worked, are as follows: 

Names. | No. of days. 

W. P., j 2 

O. O., I 2 

3d. The names of all those who have been fined, and the sums in which 
they have been fined are as follows : 

Names. | Am'tof fine 

J7DT; j $3 I 00 

4th. The names of all those who have commuted, and the manner in 
which the money arising from fines and commutations have been expended 
by me, are as follows : 

Names of persons commuting. | Amount. 

gto; i $i 1 25 

I have received for fines and commutations as above set forth, the sum 

of $ ? of which amount I have expended the sum of $ in [here 

state how the money has been expended], and no moneys remain in my 
hands unexpended [or the sum of $ remains in my hands unex- 
pended.] 

5th. The amount of uncollected road tax which I have returned to 

the supervisor of the town as required by law, is dollars. 

L. G., 
Overseer of Highways of District, No. . 

Dated this day of , 18—. 



L. G., overseer of highways of district No. in said town of 



who has subscribed the foregoing account being duly sworn, says that the 
statements in said account are true as therein set forth. 

L. G. 

Subscribed and sworn to before me this day of , A. D. 18 — . 

A. T., 
Justice of the Peace. 



142 BOADS AND BEIDGES. [dIV. II. 



neglect to render such account, or if, having rendered the same, he 
shall refuse or neglect to pay any balance which may then be due 
from him, he shall, for every such offense, forfeit the sum of five 
dollars, to be recovered, with the balance of the moneys remain- 
ing in his hands, by the commissioners of highways of the town, 
and to be applied in making and improving the roads and bridges. 
It shall be the duty of the commissioners to prosecute for such 
penalty, in every instance of such refusal or neglect. 

49. Supervisors to lay delinquent list before county board.] § 
49. It shall be the duty of the supervisors of the several towns to 
receive the list of the overseers of highways when delivered, pur- 
suant to section forty-three of this act, and to lay the same before 
the board of supervisors of the county. 

50. Levy of delinquent tax.] § 50. It shall be the duty of the 
board of supervisors, and in Cook county the county board, to 
cause the amount of arrearages of the road tax returned by the 
overseer of highways to the supervisors, as provided in section 
forty-three of this act, to be levied on the lands returned, and to 
be collected in the same manner that the other taxes of the county 
are levied and collected, and to order the same, when collected, to 
be paid over to the commissioners of highways of the town, ex- 
cept such portion of such tax as is hereinbefore directed to be 
paid to the authorities of incorporated villages, towns and cities, 
to be by them applied to the construction of roads and bridges.(l) 

51. Compensation of overseers.] § 51. Each and every over- 
seer of highways shall be entitled to one dollar and twenty-five 
($1.25) cents per day for every day he is necessarily employed in 
the execution of the duties of overseer, exceeding the amount of 
his highway labor and road tax, the number of days to be , ac- 
counted to and audited by the commissioners of highways : Pro- 
vided, that the number of days to be audited shall be left discre- 
tionary with the commissioners of highways. 

52. When road tax may be collected in money only.] § 52. 
The legal voters of any township in the state, in counties where 
township organization has been or may hereafter be adopted, ma}' 
by a majority vote, at their annual town meeting, provide that 
thereafter the road tax assessed by the commissioners of high- 
ways, under the provisions of this act be collected in money only : 
Provided, the legal voters of any township shall, by a majority 
vote, decide to pay their road tax in money, the commissioners of 
highways of any township so voting, are hereby authorized to con- 
tract for the construction and repairing of roads, the building and 
repairing of bridges, in their respective towns; and they shall let 

(1) A tax which a person lawfully owes may toe recovered by action like a debt, 
Ryan v. Gallatin County, 14 111. R., 78; Creps v. Baird, 30 Ohio R., 277. 



DIV. II.] HIGHWAY LABOR AND EOAD TAX. 143 



such contracts by a public letting, on the first Monday of May, A. 
D. 1880, and on the first Monday of May in each and every year 
thereafter, to the lowest responsible bidder, upon proper notice 
being given, by posting copies of such notices in at least ten pub- 
lic places in their town, not less than ten days before the time of 
such public letting : Provided, the notices shall specify the amount 
and kind of work to be done, and the time in which it shall be 
completed : Provided, so much of this section as relates to the 
letting of contracts, shall not be construed so as to prevent the 
letting of any contract at any other time than the first Monday of 
May, when necessity requires it, or, if the commissioners of high- 
ways deem it to be to the interest of their town, they may, to an 
amount not exceeding twenty-five dollars, privately contract with 
persons, as they deem best, for putting and keeping roads and 
bridges in repair, but in no case shall such contracts exonerate 
such commissioners from liability for failure to keep such roads 
and bridges in repair. (1; 



(1) A contract toy two highway commissioners with themselves for repairing 
Toads and bridges, when the cost exceeds $25, is illegal and void. When the cost exceeds that 
sum, the law requires the contract to be let to the lowest responsible bidder, after public notice. 
Brawns v. Town of Peoria, 82 111. R., 11. 

Form of Notice of Letting Road Contract. 

PUBLIC LETTING OF CONTRACT. 

Notice is hereby given that proposals will be received by the under- 
signed, commissioners of highways of the town of , county of , 

and state of Illinois, on the day of , 18 — , for the [here state what 

is proposed to be let by contract.] 

That the same will be let by contract by public letting to the lowest re- 
sponsible bidder, at the hour of o'clock — M. of said day, at . 

The amount and kind of work to be done are as follows : {Here state 

amount and kind of work.] This work to be completed by the day 

of , A. D. 18—. 

The said commissioners of highways reserve the right to reject any and 
all bids, if they deem it to the best interests of the town so to do. 

Dated at , this day of , 18 — . 

A. B., ) Commissioners 

C. D., \ of 

E. F.,J Highways. 

Form of Contract with Highway Commissioners for Working Roads. 

This contract made and entered into this day of A. D. 18—, 

between A. B., C. D., and E. F., commissioners of highways of the town 

of , in the county of , and state of Illinois, of the one part, 

and L. M., of , of the other part, witnesseth : 

That the said L. M., for the consideration hereinafter mentioned, doth, 
for himself, executors and administrators, promise and agree to and with 
the said commissioners of highways, and their successors in office, that 

for, during and within the space of from the date hereof, and until 

the day of — 18 — , will construct, repair and keep in order the 

roads hereinafter described, according to the specifications hereinafter 
given, doing the same in a substantial and workmanlike manner, to the 



144 ROADS AND BRIDGES. [DIT. H. 

53. Plat of road districts.] § 53. The town clerk of each town 
shall, on or before the first day of September next, and annually 
thereafter (if the boundary line be changed,) furnish to the county 
clerk a certified plat of the several road districts of his town. 

54. County clerk to designate district on tax book.] § 54. In 
all counties acting under township organization, the county clerk,, 
in extending district road tax upon the tax books, shall designate 
to what district said tax belongs. 

55. Abstract of tax due districts.] §55. It shall be the duty 
of county and township collectors to make out an abstract of the 
amount of district road tax due to each district of the respective 
townships, and deliver the same to the treasurer of the commis- 
sioners of highways. 

56. Tax to be paid to districts.] § 56. The treasurer of the 
commissioners of highways shall pay over the district road tax ac- 
cording to the abstracts as furnished above, upon the written 
orders of the various overseers of roads for work done in their 
respective districts, when said orders are approved, in writing, by a 
majority of said commissioners. 

REGULATIONS AND PENALTIES. 
Section. 

57. Destroying, etc., guide-boards, etc. 

68. Injuring or obstructing road. 

59. Injuring or destroying sidewalk, bridge, eta 

60. Suits. 

61. Application of fines. 

62. Sidewalks— Trees— Fencing hedge. 

63. Farm crossing under road. 

64. When owner may connect fence, bridge, etc. 

65. Width of roads. 

66. Notice against fast driving on bridge. 

67. Penalty for fast driving on bridge. 

68. Ditches, etc. 

57. Destroying, etc., guide-boards, etc.] § 57. For destroying 
or defacing any guide-board, post or mile-stone, or any notice or 

satisfaction of the said commissioners of highways or their successors in 
office, to-wit: [Here describe the roads.'] 

In consideration whereof, the said commissioners of highways, in behalf 
of said town, promise and agree to and with the said contractor, his ex- 
ecutors, administrators or assigns, to well and truly pay or cause to be 

paid unto the said L. M., contractor aforesaid, the sum of dollars, 

to be paid in manner following : [Here set forth manner and times of 
payment.] 

In witness whereof, the said parties have hereunto set their hands 

this day of , A. D. 18—. 

A. B.,1 Commissioners 
C. D., [ of 

E. F.,J Highways. 
L. M. 



DR. II.] REGULATIONS AND PENALTIES. 145 



direction put up on any bridge or otherwise, the offender shall for- 
feit a sum of not less than three dollars, nor more than fifty dol- 
lars. 

58. Injuring or obstructing road.] § 58. If any person shall 
injure or obstruct a public road by falling a tree or trees in, upon or 
across the same, or by placing or leaving any other obstruction 
thereon, or by encroaching upon the same with any fence, or by 
plowing or digging any ditch or other opening thereon, or by turn- 
a current of water so as to saturate or wash the same, or shall 
leave the cuttings of any hedge thereon, for more than five days, 
shall forfeit for every such offense a sum not less than three dol- 
lars, nor more than ten dollars, and in case of placing any obstruc- 
tion on the highway an additional sum of not exceeding three dol- 
lars per day for every day he shall suffer such obstruction to 
remain after he has been ordered to remove the same by any of 
the commissioners of highways, complaint to be made by any per- 
son feeling himself aggrieved :(1) Provided, this section shall not 

(1) When one obstructs a road which is used by the public for even the shortest 
period of time, he does so at his peril, for if it should be made to appear that such road was legally 
established, he would be accountable whether he had actual knowledge of the fact or not. Fer- 
ris v. Ward, 4 Gilm. R., 499. 

The fact that a road is little used does not authorize a party to close it up. Dumars v. 
Francis, 15 111. R., 543. 

The obstruction of a highway, which cannot be used by the public, for the 
purpose of a highway, in consequence of natural obstacles, is not a punishable offense. State v. 
Shinkle, 40 Iowa R., 131. 

A party may remove a fence erected across a highway, if it has before the erection of 
the fence been duly opened, without being guilty of trespass. Marcy v. Taylor, 29 111. R., 634. 
^ Obstructing a public highway by building a fence,therein, is a different and dis- 
tinct offense from that of refusing to remove a fence which was in the road when it was laid out. 
People v. Young, 72 111. R., 411. Where the wrong consists in the omission to remove fences ex- 
isting before the establishment of the road, the prosecution should be under that section of the 
statute applicable to the offense of omission, rather than under that section contemplating some 
act done by the offender after the establishment of the road, and the defendant is entitled to ask 
instructions to the jury concerning the admissibility of evidence under those sections of the stat- 
ute upon which the prosecution is based. Wiley v. Town of Brimfield, 59 111. R., 306. 

There is a difference between the offense of obstructing a highway and continuing an ob- 
struction. Crosby v. Gipps, 19 111. R., 310 ; Bickerdike v. Dean, 21 111, R., 199. 

A party is not liable, as a matter of course, to the highest penalty imposed for obstructing 
a highway. Leech v. Waugh, 24 111. R., 229. 

A temporary obstruction would not necessarily be deemed an obstruction of the high" 
way so as to incur the penalty, unless it appeared to be done with intent to prevent the free use 
thereof. Wyman v. The State, 13 Wis. R., 663. 

A street of an unincorporated town or village, when dedicated, is a public highway, 
and any person obstructing it will be liable to the statutory penalty. Otherwise, if incorporated, 
as then the streets are vested in the town, and are subject to the corporate authorities. Leech v. 
Waugh et al, 24 111. R., 228. 

All the land within a highway fence is not necessarily subject to the right of way; 
and if not it may be occupied by the owner; and if he places an obstruction there and another 
is injured by it he is not thereby liable; and it is held that though such obstruction be within 
the highway, he is not liable, unless the person injured exercised ordinary diligence to avoid it. 
6 Cowen R , 189. Yet he would be otherwise liable for obstructing the highway. See People y. 
St. Louis, 5 Gilm. R., 371. 

Where the owner of the soil dug a raceway across a road to conduct water to his 
mill, it was held that he must restore it to a traveling condition, and if any injury occurred, 
though he used the utmost care to prevent it, he was liable in damages; that the right of the 
owner depended upon mere sufferance; whenever an injury occurred the raceway would be ad- 
judged a nuisance. Lygert v. Schenck, 23 Wend. R., 446. 

But there in no such thing as a prescriptive right or any ether right, to maintain a public nui- 
sance, Philadelphia, etc., E. i2. Co. v. State, 20 Md. R., 157. 

10 



146 ROADS AND BRIDGES. [DIV. II. 



apply to any person who shall lawfully fell any tree for use, and 
will immediately remove the same out of the road, nor to any per- 
son through whose land a public road may pass, who shall desire 
to drain his lacd, and shall give due notice to the commissioners 

It is a legitimate use of a street or highway to allow a railroad track to be laid in it 
Murphy v. City of Chicago, 29 111. R., 280. 

A private corporation is liable to an action for an injury to a traveler from an ob- 
struction placed by it in a way built and kept in repair by it, and used by the public so as to have 
become a public way, although the corporation was not authorized by its charter to build it. 
Taylor v. Boston, etc., Co., 12 Gray R. (Mass.), 415, But an indictment could not be maintained 
unless the road was shown to be a public highway. State v. Price, 25 Md. R., 449. 

Highways, whether on land or water, are designed for the accommodation of the 
public for travel or transportation, and any unauthorized or unreasonable obstruction thereof, 
is, in legal contemplation, a public nuisance. Oarrish v. Brown, 51 Maine R., 256; Columbus v. 
Jaques, 30 Ga. R., 506. 

Where a bridge over a navigable stream is built for public uses, and produces a pub- 
lic benefit, and leaves a reasonable space for the passage of vessels, it is not indictable. Missis- 
sippi, etc., E. R. Co. v. Ward, 2 Black, R. (U. S.), 485. 

In an action to recover a penalty for obstructing a highway, it was held that 
it is not necessary to produce record evidence of the road, and if such evidence is introduced, as 
for instance the order establishing the road, it is not necessary, prior to the introduction of such 
order, to show that all the previous steps required by the statute have been taken ; but that the 
presumption is, that the antecedent proceedings have been regular, which presumption, how- 
ever, is subject to be rebutted. Nealy v. Brown, 1 Gilm. R., 10 ; see also, Sage v. Barnes, 9 Johns. 
R., 365. In such an action the defendant's guilt should be established by a clear preponderance 
of evidence; the rule governing criminal cases does not apply. Town of Havana v. Biggs, 58 111. 
R., 483. 

If the complainant gives a local description, sufficient to fix the precise point ob- 
structed, and also the points of termination of the road, the latter may be disregarded. But when 
the allegation is general, that a road leading from one point to another has been obstructed, the 
existence of the road between the points named, must be proved as a matter of essential descrip- 
tion. The defendant's guilt must be established by a clear preponderance of evidence, but not 
necessarily beyond a reasonable doubt, as in the case of graver offenses. Town of Lewistown v. 
Proctor, 27 111. R., 414. 

"Where the court can, from the petition for a road, the order establishing it, and 
the plat thereof, locate the road, without any difficulty, as the same road described in the com- 
plaint for obstructing a road, there is no substantial variance, although some of the points on 
the line of the road may be described in different language in different parts of the proceedings. 
Kile v. Town of Yellowhead, 80 111. R., 208. 

The fact that a paity signed a petition for a road has no tendency to show where 
it was located with reference to a fence claimed to be an obstruction, nor show that he dedicated 
land to the public to widen the road, when the proof shows he did not own the same. Harding 
Exr. v. Town of Hale, 83 111. R., 501. 

It cannot be material to the defendant whether, in the order establishing the road, 
damages were assessed to all the owners of the land along the route, so they were assessed to 
him, he being one of the owners. It might be that the other owners had released the damages, 
or were entitled to none. Clifford v. Town of Eagle, 35 111. R.. 444. 

It is the duty of the commissioners of highways summarily to remove from the 
highway a building or other obstruction placed thereon, interfering with public travel. They 
are not limited to an action to recover the statute penalty for its obstruction. Cook v. Harris, 61 
N. Y. R, 448. 

Mandamus will not be awarded to compel the commissioners of highways to 
remove obstructions in a highway, when it appears that a remedy may be had by prosecuting 
an indictment against the person guilty of causing the obstruction. Commissioners of Highways 
v. People, 73 111. R., 203. 

The statute malces it an indictable offense "to obstruct or encroach upon public 
highways private ways, streets, alleys, commons, landing places, and ways to burying places;" 
and provides a fine of not exceeding $100. For subsequent offense, a like fine and to be confined 
in county jail not exceeding three months. Rev. Stat, Crim. Code, §§ 221, 232. See Haines' 
Treatise, new ed., p. 635. 

Whilst a party may be indicted for obstructing a public road, for continuing an 
obstruction he should be prosecuted civilly for the penalty, after he shall have been ordered to 
remove it. Under an indictment for obstructing a road, he cannot be convicted for continuing 
an obstruction. These are distinct offenses. Lowe v. People, 28 111. R., 518. He should at any 
rate have notice to remove the obstruction. Sweeney v. The People, 28 111. R., 208. 

On a trial under an indictment for obstructing a highway, the questions Whether 
the road was ever worked or recognized by the public authorities, or whether the road was ever 
used as a public highway, are proper, and the answers should be admitted in evidence. The 



DIY. II.] REGULATIONS AND PENALTIES. 147 

of such intention : And, provided further, that any commissioners 
or overseers of highways, after having given reasonable notice (to 
the owners) of the obstruction, or person so obstructing, or plow- 
ing or digging ditches upon such road, may remove any such fence 
or other obstruction, fill up any such ditch or excavation, and re- 
cover the necessary cost of such removal from such owner or other 
person obstructing such road aforesaid, to be collected by said 
commissioners before any justice of the peace having jurisdic- 
tional) 

description of the road in the indictment is material, and must be proved as laid. The descrip- 
tion of a road as leading from A to B is sufficient. Martin v. People, 23 111. R., 395. 

No number of years' continuance -will legalize encroachments upon a public 
highway regularly laid out and lawfully existing as such. State v. Pier son, 37 N. J. L., 216. 

The act of an individual obstructing a public road, cannot divest the public of 
its rights in respect to the road, unless submitted to for such a period of time as to raise a fair 
presumption of abandonment. Power v. Watkins, 58 111. R., 380. 

An indictment for a nuisance in so placing a building that it encroaches on a 
highway, need not designate what part of the building so encroaches. State v. Atha-ton, 16 N. 
Hamp. R., 203. 

A road only one mile long, and from ten to fifteen feet wide, leading from a 
public highway to a church, and used by the people of the neighborhood for sixty years in 
going to and from the church, and which connected with a country road leading to a mill in 
the neighborhood, and to a railroad station, but which had never been under the charge of an 
overseer, nor worked as a public highway, is not a public highway so as to subject one to in- 
dictment for obstructing it. State v. McDaniels, 8 Jones L. (N. C), 284. 

In an action of tort for obstructing a right of way damages for the consequent 
diminution of rents cannot be recovered, unless specially alleged in the declaration. Adams v. 
Barry, 10 Gray R. (Mass.), 361. 

A resort to chancery is proper, and more effectual than the remedy at law, where 
an injury of a public nature is threatened, as the inclosure of a highway, whereby public travel 
is in danger of being interrupted, and thereby great numbers of the citizens subject to petty loss 
and annoyance, by reason of such obstruction. Craig v. The People ex reL 47 111. R., 487. 

But where the nuisance complained of is the mere obstruction of a highway, 
the remedy at law is complete. If, in such a case, however, it were found that there was no 
sufficient remedy at law, it might be that equity would interpose. Dunning v. City of Aurora et 
al., 40 111. R., 481. 

Suits for penalties under the road law should be in the name of the town as 
plaintiff, unless where it is otherwise provided. The commissioners of highways cannot sue in 
their name for such penalties unless where expressly authorized. Town of Partridge v. Snyder, 78 
111. R., 519. 

The record of a judgment recovered against a party in a suit by the town authorities 
for obstructing a highway, is not conclusive evidence of the existence of a public highway at a 
point in dispute, in a suit by the owner of land to enjoin such town authorities from opening a 
road over his land at the disputed point. Mclntrye et al v. Story, 80 111. R., 127. 

An appeal lies from a judgment of a justice of the peace in a proceeding to recover 
a penalty, under § 58 of this act. Town of Partridge v. Snyder, 78 111. R., 519. 

(1) Form of Notice to Owners to Remove Obstruction. 
To A. B., 

Sir : You are hereby notified that there is an obstruction in the public 
road, crossing land of which you are the owner, at [give som.e description 
of the place sufficient to designate it,'} consisting of [state the obstruction 
as: a fallen tree; a fence ; a ditch or the like,} and unless you shall remove 

the same within days from the date of service of this notice, the 

commissioners of highways of the town of will proceed and remove 

the same at your cost, as provided by law. 

Dated this day of , 18—. 

C. D., ) Corn's of 
E. F., > Highways of the 
G. H., > Town of . 



148 EOADS AND BRIDGES. [DIV- H* 

59. Injuring or destroying sidewalk, bridge, etc.] §59. If any 

Eerson shall purposely destroy or injure any sidewalk, public 
ridge, culvert or causeway, or remove any of the timber or plank 
thereof, or obstruct the same, he shall forfeit a sum not less than 
three nor more than one hundred dollars, and shall be liable for 
all damages occasioned thereby, and all necessary costs for re- 
building or repairing the same. 

60. Suits.] § 60. All suits for the recovery of any fine or 
penalty under this act shall be brought in the name of the town 
in which the offense is committed, before any justice of the peace 
or police magistrate within the town or county, who shall have 
jurisdiction in such cases to the extent of their jurisdiction in 
other cases ; and it shall be the duty of commissioners of high- 
ways to seasonably prosecute for all fines and penalties under this 
act; but in case of a failure of said officers to so prosecute, com- 
plaint may be made by any person : Provided, said person shall,, 
before bringing said suit in the name of the town, give a bond for 
costs, as is provided for in the case of non-residents,(l) 

61. Application of fines.] § 61. All fines recovered under tho 
provisions of this act, unless otherwise provided, shall be paid 
over to the commissioners of highways of the town where the of- 
fense is committed, to be expended upon the roads and bridges 
in the town. 

62. Sidewalks— Trees— Fencing hedge.] § 62. It shall be law- 
ful for the owner or occupants of land bordering upon any public 
road to build sidewalks not to exceed six feet in width, and to 
plant shade and ornamental trees along and in such road, at a 
distance not exceeding one-tenth of the legal width of the road 
from its margin; also to erect and maintain a fence, so long as 

The law provides tliat reasonable notice shall be given to the owners, of an obstruc- 
tion, before the commissioners are authorized to proceed and remove it. As to what length of 
time is a reasonable notice will depend on the circumstances of the case. If it will require more 
than one day's time to remove an obstruction, then reasonable notice would be more than one 
day. A party should have notice to remove an obstruction. Sweeney v. The People, 28 111. R., 208. 

On a bill to enjoin the tearing down of the fence of complainant, where the defend- 
ants insist on their right to remove the fence because they are commissioners of highways, and 
the ience is an obstruction to a public highway, the burden of proving that there is a highway 
at the place where the fence is, is upon them. Mclntrye et al v. Storey, 80 111. R,, 127. 

Where a road had been opened and traveled for many years, and it was claimed 
that certain parties had obstructed the same by encroachment of their fences to its center, which 
fact was disputed, and it appeared that the encroachment, if any, was made under an honest 
claim of right. Held, that it was error to award a mandamus against the commissioners of high- 
ways to compel them to remove the obstruction, there being no such duty imposed on them by 
statute, and because the Jaw afforded ample redress by suit for the penalty imposed, and by in- 
dictment, in which the parties charged could be heard in defense of their claim. Commissioners 
of Highways v. The People, 66 111. R., 339. 

(1) Snits for the recovery of fines and penalties under the above section may be 
brought and prosecuted in the manner of an ordinary civil action between individuals for a 
money demand. Ewbanks v. Ashley, 36 111. R., 177. The complaint is not required to be in writ- 
ing or under oath. The summous may be in the general form prescribed by the statute on 
this subject. See Haines' Treatise, new ed., title "Proceedings in cases of fines, penalties and 
forfeitures," p. 282, where full instructions are given for bringing suits in such cases. 



LiV. II.] REGULATIONS AND PENALTIES. 149 

shall be actually necessary for the purpose of ^raising a hedge on 
said margin, a distance of four feet from and within said marginal 
lines. (1) 

63. Farm crossing under road.] § 63. Any person owning, us- 
ing or occupying lands on both sides of any public highway, shall 
be entitled to the privilege of making a crossing under said high- 
way, for the purpose of letting his cattle and other domestic ani- 
mals cross said road : Provided, said person shall erect, at his own 
expense, a good and substantial bridge, with secure railings on 
each side thereof, and build an embankment of easy grade, on 
either side of said bridge ; said bridge not to be less than sixteen 
feet wide, and to be approved by the commissioners of highways 
of the town in which said bridge is built, and the same to be kept 
constantly in good repair by the owner or occupant of said land, 
the construction subject always to the consent and approval of 
the commissioners of highways of said town : And, provided^ 
further, that, in case such crossing is made on any water way or 
natural channel for water, and where a culvert or bridge is main- 
tained as required for road purposes, said owners or occupants 
shall not be required to pay for or construct any more of said 
crossing, than the additional cost of such crossing over and above 
the necessary cost of a suitable culvert or bridge for road purposes 
qX such place.(2) 

The following is the form of bond for costs provided for in the case of non-residents. 
See Haines' Treatise, new ed., 282. 

Form of Bond for Costs. 
State of Illinois, > 
County, 5 ss> 

vs. I Before , Justice of the Peace. 

I, E. F., do enter myself security for all costs that may accrue in the 
above cause. 

Dated this day of , 18 — . 

E. F. 

The provision in regard to security for costs must be observed. It cannot be dis- 
pensed with. Seward v. Wilson, 1 Scam. R„ 193. 

,*Q A fence P lac «d in the highway for the purpose of protecting a growing hedge, 
if built pursuant to the statute, is not considered an obstruction m the highway. Harding v. 
Town of Hale, 61 111. R., 192. y 

Shade trees along a highway, although within the bounds of the road, are the property 
of the owner of the land adjoining; they are subject to his control, and he has a right to remove 
them. Lancaster v. Richardson, 4 Lansing R. (N. Y.),136. 

(2) It is proper that the consent and aj oval of the commissioners in regard to the 

construction of a bridge over a crossing, should be reduced to writing This will avoid questions 
that might otherwise arise. The following may be the form of such consent: 

Form of Consent of Commissioners of Highways for Construction of Bridge 

over Crossings. 

We, the commissioners of highways of the town of , do consent to 

the erection of a bridge, by G. H., on the highway at [state the place 



150 KOADS AM) BRIDGES. [DIV. H. 

64. When owner may connect fence, bridge, etc.] § 64. And 

where any bridge on a public road is constructed over a stream 
or body of water, where the depth or current of water, or the 
nature of the bank or banks of such stream or body of water is 
such as to render a fence on the marginal line of the public road 
impracticable or very expensive to construct and keep in repair, 
the owner of the land bondering on the public road shall have 
the right to connect the road fence on either or both banks of the 
stream or body of water, to said bridge or any pier or abutment 
thereof, or to any embankment or timber approach to said bridge : 
Provided, that no necessary ford across said stream or body of 
water shall be permanently obstructed thereby ; And, provided, 
further, that any such connecting fence shall be constructed by the 
consent and under the direction of the commissioners of highways 
of the town in which the bridge may be located. (1) 

65. Width of road.] § 65. All public highways, laid out by 
order of the commissioners of highways or supervisors, on appeal 
shall be not less than fifty feet wide, nor more than sixty feet 
wide : Provided, the commissioners may lay out roads not less 
than forty feet wide nor more than sixty feet wide, when so prayed 
for by the petitioners, if such road does not exceed two miles in 
length : And, provided, further, that all public roads shall be 

where with reasonable certainly] so as to afford a crossing of said highway, 
subject to be kept constantly in good repair by him as required by law. 

Witness our hands, this day of , 18—. 

A. B.,1 Commissioners 
C. D., \ of 

E. F.,J Highways. 

The approval of the bridge by the commissioners may be indorsed on or attached to the writ- 
ing of consent in the following form : 

"We, the commissioners of highways, do approve of the bridge built in 
pursuance of the within written consent." 

(To be signed by the Commissioners.) 

(1) The statute giving the owner of land on a public road the right to connect 
his road fence on either or both banks of a stream or body of water to any bridge over the 
same, or to any abutment thereof, upon consent of the commissioners of highways, except in 
certain cases, does not require that a record shall be made of such consent, or that it shall be 
given in writing, but it may be in parol only. Town of Old Tovm v. Dooley, 81 111. R., 255. 

The present road law, however, requires the commissioners to keep a correct record of their 
proceedings at all meetings. See ante. p. 127, § 13. 

If it is desired to have the consent of the commissioners reduced to writing, the following may 
be the form thereof: 

Form, of Consent of Commissioners of Highways to Connect Fence with 

Bridge. 

County, V 

Town of j 



We, the commissioners of highways of said town of , do consent 

that A. B., may connect his road fence with the bridge on the highway 
where the same crosses the river, in said town. 

Witness our hands this day of , 18—. 

(To be signed by the commissioners. 



DIY. II.] REGULATIONS AND PENALTIES. 151 



opened within five years from the date of the filing of the order 
laying out the same or be deemed vacated. (1) 

66. Notice against fast driving on bridge.] § 66. The commis- 
sioners of highways of each town may, when they shall deem it 
advisable, put up and maintain, in conspicuous places, at each end 
of anv bridge in such town, maintained at the public charge, a 
notice with the following words, in large characters : " Five dol- 
lars fine for riding or driving" on this bridge faster than a walk." 

67. Penalty for fast driving on bridge.] § 67. Whoever shall 
ride or drive faster than a walk, over any bridge upon which notice 
shall have been placed and shall then be, shall forfeit to the town, 
for every such offense the sum of five dollars.(2) 

68. Ditches, etc.] §68. The commissioners of highways of the 
several towns are hereby authorized to enter upon any land adja- 
cent to any highway in their town, for the purpose of opening any 
ditch, drain, necessary sluice or water course, whenever it shall be 
necessary to open a water course from any highway to the natural 
water courses, and to dig, open and clean ditches, upon said land 

(1) To avoid the vacation of a road under the five years limitation, it is neces- 
sary that it should be opened its entire length within five years. It is not sufficient to open only 
a part of it. Green et al. v. Green, 34 111. R., 320. If any part is permitted to remain fenced up 
and the travel turned another way to avoid a field, this will vacate so much of the road as re- 
mains fenced up. Lyon v. Munson, 2 Cowen R., 426. Such non-user operates as an abandonment 
of the road ; and whether the right of way has been obtained by release or by condemnation or 

f>ayment of damages, the right of the owner to resume the exclusive use and occupancy of the 
and is complete and unqualified after such abandonment. Green et al. v. Green, 34 111. R., 320. 

If the town authorities fail to procure the right of "way until the day before the 
five years expire, and it is apparent that the road cannot be opened within the time, a court of 
equitv may restrain the town officers from opening a small portion of the road before the time 
expires. Green et al. v. Green, 34 111. R., 320. 

Where the five years, within -which a public road is required to be opened, ex- 

{)ires pending litigation in respect to the establishing of the road, the time consumed in the 
itigation must not be estimated as a part of the five years. Commissioners of Highways v. The 
People ex rel., 38 111. R., 347. 

The failure hy the commissioners of high-ways to cause a public highway long in 
use, to be opened to its full statute width for a period of thirty years, does not operate to ex- 
tinguish the rights of the public to the parcels not so opened and worked. Walker v. Caywood, 
37N.Y.R..51. 

Where, after the making of an order in 1839, laying out a road, the road was that year open in 
fact and during 1839 and succeeding years, was open, and partially worked throughout the route, 
and was traveled by the public more or less, every year from the time of its being laid out, 
ouened and worked: held, that this was an opening of the road within the time required by the 
statute. Marble v. WTiitney, 28 N. Y. R. (Tiffany), 297. 

Where the order establishing a road was made August 19, 1863, notice to remove fences was 
served February 1, 1868. The commissioners opened a passage way July 1, 1868, and allowed 
bars to be put in temporarily to protect crops, on condition that no one should be hindered in 
passing through. Held, a sufficient opening to avoid vacation. Wiley v. Town of Brimfield, 59 
111. R., 306. 

A road passing throngh nn improved and nninclosed lands is considered, in 
contemplation of law, opened when established. Ferris v. Ward, 4 Gilm. R., 499. 

"Where a public highway has been abandoned for a great length of time, and 
another road has been opened and traveled by the public, and recognized by the public author- 
ities having charge of the roads, and repaired by them as such, an abandonment will be pre- 
sumed. GaOrraith v. Littiech, 73 111. R., 209. 

(2) Suit for recovery of the fine, under the above section, may be brought before 
a justice of the peace of the county, it being a misdemeanor and the punishment being by find 
only. For the law and forms and mode of proceeding in this regard, see Haines' Treatise, 
new ed., part 2, chap, ix., p. 738. 



152 ROADS AND BRIDGES. [DIY. II. 

for the purpose of carrying off the water from said highways, or 
to drain any slough or pond on said highway : Provided, that 
unless the owner of such land, or his agent, shall first consent to 
the cutting of such ditches, the commissioners shall apply to any 
justice of the peace in the county in which such road is situated, 
for a summons directed to any constable of said county, command- 
ing him to summon the said owner to appear before the said justice, 
at a time and place specified in such summons, not less than five 
nor more than fifteen days from the date thereof, for the purpose 
of having the damage assessed, which such owner may sustain by 
reason of the digging or opening of such ditches or drains. The 
said summons shall be under the hand of the said justice ; and 
be served in the same manner as a summons is now served in civil 
actions before justices of the peace. On the return of such sum- 
mons, a venire shall be issued for a jury of twelve persons, who 
shall be summoned, and whose competency shall be determined, 
as in other cases in the trial of civil actions before justices of the 
peace ; which jury shall assess such damages and render a verdict 
therefor, which shall be final and conclusive, of the amount of 
damages sustained by such person, unless such person shall, within 
the time allowed now by law, perfect an appeal, and the amount 
so awarded shall be paid before the commissioners of highways 
shall be warranted and empowered to enter such lands, and dig, 
open and clean such drains, ditches and water courses, as afore- 
said, for the purposes contemplated in this act ; and the commis- 
sioners of highways are further authorized to use and employ the 
road labor and money of their town for such purposes : Provided, 
that in case the owner of said lands is a non-resident, service may 
be had by leaving a copy with the occupant or agent, or by notice 
in the same manner as prescribed in section (81) of this act.(l) 

(1) Form of Summons to Owner of Land to have Damages Assessed. 
State of Illinois, "I 

County, / " 

The people of the state of Illinois, to any constable of said county greet- 
ing: 
You are hereby commanded to summon A. B. to appear before me, 
at , on the day of , 18 — , at o'clock — M., for the pur- 
pose of theu and there having the damage assessed which he, said A. B., 
may sustain by reason of the digging [or, opening] of a ditch [or, as the 

case may be] by the commissioners of highways of the town of — , 

across the land of said A. B., at [state the place where as near as may be.} 

Given under my hand this day of , 18. 

J. D., Justice of the Peace. 

The proceeding in this case may i>e docketed and conducted like a suit in a civil 
action. The town may be named as plaintiff or actor, and the party summoned, as defendant. 
The justice can observe the like form of docket entry of the proceedings as in ordinary civil 
actions, varying the same when necessary to suit the occasion. The verdict of the jury should 
be entered on his docket in the proceeding as in other cases whereby the finding of the jury will 
become a matter of public record for justification of future acts of the commissioners in the 



TIV. H.] ALTEKING, WIDENING, VACATING AND LAYING OUT. 153 



ALTERING, WIDENING, VACATING AND ESTABLISHING ROADS. 

Section. 

69. Altering, widening, vacating and laying out roads. 

70. Petition. 

71. Time of meeting to be fixed — Notice. 

72. Adjournment — Decision — Proceedings thereon. 

73. In case of vacation of road. 

74. When for laying out, altering or widening road. 

69. Altering, widening, vacating and laying out roads.] § 69. 

The commissioners of highways may alter, widen or vacate any- 
road, or lay out any new road in their respective towns, when pe- 
titioned by any number of free-holders, not less than twelve, resid- 
ing in such town, within three miles of the road so to be altered, 
widened, vacated or laid out.(l) 

70. Petition.] § 70. Said petition shall set forth, in writing, a 
description of the road, and what part thereof is to be altered, 
widened or vacated, and if for a new road, the names of the own- 
ers of lands, if known, and if not known, it shall be so stated, over 
which the road is to pass, the points at or near which it is to com- 
mence, its general course, and the place at or near where it is to 
terminate. (2) 

premises. The number of the jury in this case will be twelve. For proceedings in trial of 
civil actions and complete forms of docket entries, see Haines' Treatise, new ed., under appro- 
priate heads. 

(1) A freeholder is defined to be one who owns an estate in fee simple, fee tail, or for 
life ; the possessor of a freehold. A freehold is an estate in real property of inheritance or for 
life, or the tenure by which it is held. The term freeholder, mentioned in the above section in its 
■simplest signification, means one who is the owner of real estate. 

(2) Form of Petition for the Alteration of a Road. 

To the Commissioners of Highways of the town of , in the county 

of , State of Illinois : 

The undersigned freeholders, residing within three miles of the road 
known as [describe the road] do hereby petition you to alter said road [or 
.a portion of said road], as follows: Commencing at [state the place of 

commencing'] in said town of , and running the line of said road as 

follows : [state the manner in which the alteration of the line is desired] 
and your petitioners pray that you will proceed and alter said road accord- 
ingly: 

Dated at , this day of , 18 — . 

Form of Petition for Widening a Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three milles of the road 

known as [describe the road], the same being now feet in width, do 

hereby petition you to widen the same to the width of feet, and your 

petitioners pray that you will proceed and widen said road accordingly. 

Dated at , this day of , 18—. 

Form of Petition for Vacation of Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the road 
known as [describe the road] , do hereby petition you to vacate said road 



154 ROADS AND BRIDGES. [DIV. II. 

71. Time of meeting to be fixed— Notice.] § 71. Whenever 
the commissioners of highways shall receive any such petition, 
they shall fix upon a time when and where they will meet to ex- 

[or so much of said road as lies in said town, or the following portion of 
said road, describing the portion,'] and your petitioners pray that you will 
proceed and vacate said road accordingly. 
Dated at , this day of , 18—. 

Form of Petition for New Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the route 
hereinafter mentioned and described for a road, do hereby petition to you 

to lay out a new road of the width of feet, as follows: commencing at 

[or near, giving the point at or near which the road is desired to commence,] 
and running thence in a [north-easterly] direction, on the most eligible 

route to intersect [the road, at or near the house of S. L.] The 

names of the owners of lands over which the same is to pass are A. B., C. 
D. and E. F., and your petitioners pray that you will proceed to lay out 
said road and cause the same to be opened according to law. 

Dated at , this day of , 18 — . 

Where the owners of lands over which the road is to pass are not known, then that fact should 
bo stated in the petition, which statement should be as follows: 

"The names of the owners of lands over which said road is to pass are 
not known to your petitioners." 

If a portion of the owners are known, and others not known, the statement can be as follows: 
"The names of the owners of lands over which said road is to pass, as 
far as known to your petitioners, are A. B., C. D., etc. The names of the 
owners of the following lands which said road is to pass over, to-wit: [here 
describe the land with reasonable certainty,] are unknown to your peti- 
tioners." 

The law makes no pro-vision as to the mode of presentation of a road petition. The 
consideration of a petition requires the concurrence of the commissioners, or a majority of them. 
See ante, § 10, clause second, p. 120. In other words, a petition can be considered only at a meeting 
of the commissioners. The law fixes the time of but one meeting in each year. See ante, \ 13, 
p. 127. The time of all subsequent meetings is regulated by the commissioners themselves. The 
custom has been to present the petition to one of the commissioners, whereupon he notifies the 
other two, when a meeting is called to consider the petition. The commissioners should adhere 
to some rule to this effect in the absence of any provision of law on the subject. 

It is a rale, that members of an official body composed of several persons, cannot 
act individually so as to bind the whole; official acts can be performed only at a meeting of 
the board, through a united action of the members. Bouton et al. v. Board of Supervisors, 84 I1L 
R., § 84 ; Corn's of Randolph Co. v. Jones, Breese R., 237. 

On presentation of a petition to the commissioners of highways, they should first 
examine and see that it is regular upon its face. If so, their next duty is to ascertain whether 
the requirements of the law have been complied with. If not, they will be justified in refusing 
to act. The law requires: First, that the petition shall be signed by not less than twelve freehold- 
ers, residing within three miles of the road proposed to be altered, widened, vacated, or laid out. 
Second, if it is to alter widen or vacate a road, the petition must set forth a description of the road 
which it proposes to change, and, if a new road, it must set forth the names of the owners of the 
lands if known (and if not known, it must be so stated), over which it is to pass, the point at or 
near which it is to commence, its general course, and the place at or near where it is to terminate. 

Upon theirs* point, the commissioners may satisfy themselves from actual knowledge, or upon 
proper inquiry. The second will appear from the petition itself. 

In a proceeding of this kind, where private rights are to be affected by the appro- 
priation of private property to puolic use. all the essential forms of the law must be rigidly ob- 
served, or the proceedings will not be sustained. New Orleans v. Sohr, 16 La. An. R., 393. 

"Where an application is made to commissioners of highways for laying out a road, 
etc., they may refuse to act and should do so unless, in their opinion, the petition presented 
to them is regular and in accordance with the requirements of the law. If they err in their re- 
fusal to act, the remedy by mandamus is at hand. Warnick v. Orange Co. 13 Wend. R., 432. 

The petitioners must be freeholders of the town where the proceedings are to be 



DIV. II.] ALTERING, WIDENING, VACATING AND LAYING OUT. 155 

amine the route of such road, and to hear reasons for or against 
the altering, widening, vacating or laying out the same, and they 
shall give at least ten (10) days notice of the time and place of 

had. If they reside out of the town, although within three miles of the road, they are not lawful 
petitioners. Warne et al. v. Baker, 35 111. R., 382. 

It is no objection to a petition that more than twelve persons have signed it, and 
where twelve of the numbers are legal voters and reside within the town, it will be no objection 
because others whose names are upon the petition are not legal votes, or are not otherwise qual* 
ified. See Carmel v. Judges of Putnam Co., 7 Wend. R., 64. 

The common law rule that a judge cannot sit in a cause in which he is inter- 
ested, does not apply to highway commissioners. Such a commissioner, therefore, is not prohib- 
ited thereby from acting in the laying out of a highway, by the fact that he is the owner of lands 
through Avhich the projected highway runs. Foot v. Stiles, 57 N. Y. R., 399. 

The commissioners cannot proceed, except upon a petition in writing, by the 
requisite number of freeholders, and an order made by them, laying out a road without such pe- 
tition would be void. In case of contest, as to the legality of the road, the petition itself is not 
evidence that the signers are freeholders. Harrington v. People, 6 Barb. R., 607; Williams v. 
Holmes, 2 Wis. R., 129. 

But where the owners of land release all damages, and no private rights are affected, the same 
strictness in regard to the petitioners would probably not be required. Marble v. Whitney, 28 N. Y. 
R. (1 Tiffany), 297. 

The general course of Ihe road petitioned for is designated by the petitioners, the par- 
ticular route by the commissioners, and the latter may make such variations as they may think 
proper, provided the departure is not of such a character as to induce the court to suppose 
that these officers had wholly disregarded the preliminary proceedings of the application. Hal- 
lock v. Woolsey, 23 Wend. R., 328; Neis v. Franzen, 18 Wis. R , 557. 

A highway must he laid out in conformity with the route described in the petition, 
otherwise the doings of the road commissioners will be without authority and invalid. Cole v. 
Town of Canaan. 9 Foster R., 88. The distinctive marks of a highway as petitioned for, are the 
points of beginning and termination ; the petition must be observed in this respect in laying out 
the road. A highway, laid from one terminus described in the petition about half way to the 
other, cannot be said to be the highway petitioned for. Ford v. Banbury, 44 N. Hamp. R., 388. 

The point of commencement named in the petition cannot be changed by the com- 
missioners. They can only grant or reject the prayer of the petition in this regard. * Shinkle v. 
Mngill, 58 111. R-, 422. The petition should describe the points of commencement and termina- 
tion with certainty. Johns v. Marion Co., 4 Oregon R., 46. 

The hounds in a petition for a highway from a certain place "to a point near the 
dwelling house 'of B," was deemed sufficiently definite in fixing the point of termination. West- 
port y. County Commissioners, 9 Allen R. (Mass.), 203. 

Equity -will in t permit a road to be established through a township simply for the pur- 
pose of procuring a road for a part of the distance, for it would operate unjustly, if not as a fraud 
upon property holders. Green et al. v. Green, 34 111. R., 32. 

Where commissioners were appointed hy an act of the legislature to lay out a 
road on the most direct and eligible route, commencing at or near a certain village, and the road; 
was laid out, commencing at a distance of sixty rods from the village, in a field where there was 
no road with which it could connect, and the route, instead of being the most direct and eligible 
was, as expressed by the court, strikingly injudicious; yet, notwithstanding these facts, the court 
awarded a peremptory mandamus to the commissioners of highways of the tdwn, to proceed 
forthwith to open and work the road as laid out by the state commissioners. It was held that 
the court would not collaterally review the doings of the commissioners, and hold as void the 
final determination made by them, in the exercise of their discretion or judgment. That the 
proper way of taking advantage of an error of this kind would be by a certiorari or writof error, 
if no other mode of appeal is given by statute. People v. Collins, 19 Wend. R., 56. 

A petition for a change in the location of certain parts of a road must set forth particu- 
larly the parts proposed to be changed. Chartiefs Road, 48 Penn. State R., 314. 

A petition to alter a town line road between two points specified, so as to "avoid that 
swampy land, and lav the said highway either northward or southward, that is, either through 
town 17 or town 10, at the discretion of the commissioners, on good and dry land," designates 
with sufficient certainty the alteration asked for, to give the commissioners jurisdiction to pro- 
ceed. Neis v. Franzen,18 Wis. R., 537. 

A fair interpretation of sections 69 to 77 inclusive, of the road law, warrants including a 
prayer for a new road and for vacating an old road in the same petition. Anderson v. Wood et 
al.. 80 111. R., 15. 

The proceedings for laying out roads by commissioners of highways are town pro- 
ceedings ; they are the act of the town. 23 Minn. R., 537 ; Woodruff v. The Town of Glendale et al., 
Sup. Ct. Minn", June 12, 1879. 

A town meei ing has no jurisdiction over the subject of abandoning highways. Brock 
v. Hishen, 40 Wis. R., 674. 



156 ROADS AND BRIDGES. [DIV. IT. 

such meeting, by postiDg up notices in three (3) of the most pub- 
lic places in the township, in the vicinity of the road to be widened, 
altered or vacated.(l) 

(1) Form of Notice of Commissioners for Time and Place Fixed for Ex- 
amination of Route, and Hearing Reasons for or Against Road. 

HIGHWAY NOTICE. 

A petition having been presented to the commissioners of highways of 

the town of , in the county of , to lay out a new road [or as the 

case may be] upon the following described route, to-wit: [here describe 
the road as set forth in the petition.'] The said commissioners do hereby 

give notice that they have fixed upon the day of , 18—, at the 

hour of o'clock — M., at the house of J. D., in said town, as the time 

and place they will meet to examine the route of such road, and to hear 
reasons for or against the laying out of the same [or as the case may be] 
when and where all persons interested can be heard. 

Dated at , this day of , 18—. 

H. R., ) Commissioners 
C. P., [ of 

M.H.J Highways. 

Where the law requires notices to be posted in the most public places of the 
town, and the place of posting seems to be public a place, the court will presume, in the absence 
of any showing to the contrary, that the place of posting was one of the most public places in 
the town. Tieck v. Commissioners of Carver Co., 11 Minn. R., 292. 

Notice must be given of the meeting of the commissioners, and the want of it 
will vitiate their proceedings. This is essential to their jurisdiction. What is said to the con- 
trary in Wells v. Hicks, 27 111. R., 345, is to be regarded as obiter dictum, and not binding as author- 
ity in the case. Commissioners v. Harper, 38 111. R., 104 ; Frizzell et al. v. Rogers, 82 111. R.. 109. 

Tlie posting of these notices is a positive requirement of the statute, and must be 
complied with, and the recital in the order establishing the road, that the notices were posted, 
will he taken as evidence thereof. Shinktl et al. v. Magill et al, 58 111. R., 422. 

The notice of the time and place of the meeting of the commissioners to hear 
reasons for and against road, is in the nature of a condition precedent to any action on their 
part and to the exercise of the power to appropriate the land of the citizen for the use of the 
road. Wood v. Commissioners of Highways, 62 111. R., 391. 

The requirements of the statute in regard to the petition notices, and the 
•survey of the road and order of the commissioners, must be complied with, and where none of 
these facts were shown, and the road had never been opened or used, or regarded by road offl- 
•cers as a highway, a mandamus to show cause why damages should not be allowed to a party 
through whose land a road was claimed to have been laid out, was refused. In such case the 
board of auditors have no authority to review the proceedings in laying out the road, except to 
■see that thev were not void for want of jurisdiction. For this purpose, it seems, they may review 
the proceedings. People v. Town Board of Lagrange, 2 Mich. R., 187; Austin v. Allen, 6 Wis. R„ 
134; Babb v. Carver, 7 Id., 124; Teick v. Commissioners of Carver Co., 11 Minn. R., 292. 

Notice by posting is for tlie benefit of persons affected by the location of the road 
.as owners of tlie land, and is termed constructive notice. It is held that notice, actual or con- 
structive, to the owner of land, of proceedings to lay out a public way across it, is indispensable, 
whether the statute provides for such notice or not, and where the law requires personal service, 
notice of proceedings to a vendor who sells the land while the proceedings are pending, is not 
notice to the vendee. Curran v. Shuttuck, 24 Cal. R., 427 ; Willis v. Smith, 14 N. Y. R., 17. 

The notice given by the commissioners before laying out a highway must, with rea- 
sonable strictness, comply with the language of the statute, and be sufficient to inform all per- 
sons interested of the time and place of meeting. A notice that they will meet at a certain time 
and place, " to take into consideration the petition of D. C. and others for laying out a highway," 
does not comply with the statute, and a road laid out under such a notice would not be legal, 
Babb v. Carver, 7 Wis. R., 124. 

The commissioners are required to meet within twenty days after the expira- 
tion of the twenty days provided to hear reasons for and against the objects sought by the peti- 
tion. This requirement is not merely directory, but is peremptory ; such a meeting of the commis- 
sioners within that time, is essential to the validity of their action. A meeting twenty-three days 
after the expiration of the twenty days will not satisfy the requirements of this statute. Commis- 
sioners v. Harper, 38 111. R., 104. 

In laying out highways, the commissioners as well as the supervisors before 
<whom the matter is brought on appeal, exercise special and limited jurisdiction, and although 



DIY. II.] ALTERING, WIDENING, VACATING AND LAYING OUT. 157 

72. Adjournment— Decision— Proceedings thereon.] § 72. The 

commissioners may, by public announcement, and by the posting 
of a notice at the time and place named for the first meeting, 
adjourn the meeting from time to time, but not for a longer period 
than twenty days in all ; and shall, at the first or such adjourned 
meeting, within said twenty days, decide and publicly announce 
whether they will grant or refuse the prayer of the petition, and 
shall endorse upon, or annex to the petition, a brief memorandum 
of such decision, to be signed by the commissioners. Such 
decision shall be subject to revocation, in case the prayer of 
the petition is granted, in the manner hereinafter provided. In case 
the commissioners refuse to grant the prayer of the petition, they 
shall, within ten days thereafter, file the same, so indorsed, or with 
such decision annexed thereto, in the office of the town clerk. (1) 

it may be presumed till the contrary appear, that they have proceeded legally, yet their acts may 
be impeached by showing that they have exceeded their powers. 3 Hill R., 458. 
Laying out a highway upon considerations other than the public good is 

held to be illegal. Thus, where a road was laid out by the commissioners, both because they 
thought the public good required it, and because G. and F. stated to them that if they would lay 
the road the petitioners would make it without any expense to the town; both of which were 
taken into consideration by the commissioners in deciding to lay the road. Held, that a laying 
out upon such inducements would be clearly illegal. Gurnsey v. Edwards, 6 Foster R., 224, 

This act, however, permits inducements from individuals of money or labor, by contract in 
writing. See post, § 90. 

The commissioners of highways have no jurisdiction in the matter of laying out 
a highway which is not to be wholly within their town, unless under some express provision of 
law, as when the road is to be on the town line, and then they act in conjunction with the com- 
missioners of the adjoining town. See case of Griffin's petition, 7 Foster R., 343. 

Laying out and opening of* roads is not an exercise of judicial powers; yet 
the presumption ordinarily is that the antecedent proceedings have been regular ; which pre- 
sumption, however, is subject to be rebutted. Nealy v. Brown, 1 Gilm. R., 10. 

But it is held in New Hampshire that the laying out of highways partakes of the character of 
judicial proceedings, and that such act is a judicial act. State v. Richmond, 6 Foster R., 232. 

(1) Form of Notice of Adjournment of Road Meeting. 

HIGHWAY NOTICE. 

Public notice is hereby given that the meeting of the commissioners of 
highways of the town of , in the county of , and state of Illi- 
nois, to examine the route of a proposed public road and to hear reasons 
for or against laying out the same [or, as the case may be], according to 
the petition of J. S., L. M. and others, as follows : [here describe theroute~] 
which meeting was to be held, pursuant to public notice, at [state place], 
on the day of , A. D. 18—, at o'clock, — M., is hereby ad- 
journed until the day of — , A. D. 18—, at o'clock — M., at 

[state the place], in said town. 

Dated this day of , A. D., 18—. 

R. L., ) Commissioners 
E. S., [ of 

H.P.J Highways. 

Form of Memorandum of Decision Or anting or Refusing Prayer of 

Petition. 
We hereby grant [or refuse] the prayer of the within [or annexed] pe- 
tition, this day of , A. D. 18—. 

R. L.,) Commissioners 
E. S., \ of 

H. P., J Highways. 



158 ROADS AND BRIDGES. [DIV. II. 

73. In case of vacation of road.] § 73. If the petition is simply 
for the vacation of a road, and the commissioners of highways, or 
a majority of them, shall at such meeting, decide that the prayer 
of the petitioners should be granted, they shall order such road to 
be vacated — a copy of which order, together with the petition, 
shall be by them filed with the town clerk, such order to be so filed 
within ten days after the date of such decision.(l) 

74. When for laying out, altering or widening road.] § 74 If 
such petition is for the establishment of a new road, or the alter- 
ation or widening of an existing road, and the commissioners of 
highways, or a majority of them, shall be of the opinion that the 
prayer of the petitioners should be granted, they shall cause a sur- 
vey and plat of such road to be made by a competent surveyor, 



On presentation of a petition, ten days is allowed within which the commission- 
ers shall meet to hear reasons for or against the prayer of the petition. It was held, under the 
former road law, which required copies of the petition to be posted, that the meeting of the 
commissioners for the purposes aforesaid must be held within thirty days from posting of the 
petition. In a case where meeting was not held until the thirty-first day, after the lapse of thirty 
days it was held that the presumption was that the project had been abandoned, and the com- 
missioners had no authority to proceed further: that the statute is mandatory and not directory. 
Shinkle et al. v. Magill et al., 58 111. R., 422.* Posting of copies of the petition being dispensed with 
under the present law, it would seem that the time within which the commissioners are to meet 
to hear reasons, would commence running from the date of the presentation of the petition to 
the commissioners ; that they should meet within thirty days thereafter. 

The law contemplates that all the commissioners will he present when any 
action is had on a petition, but a majority may act. and decide all questions. If two only are 
present and act, all should have notice of the meeting. Babcock v. Lamb, 1 Cowen R., 238 ; Com- 
missioners v. Swan, 65 Barb. R., 210. It is not proper for two commissioners to hold a meeting for 
special purpose, unless all have notice of the meeting. Fitch v. Com'r of Kirlland,22 Wend. R., 132. 

Where the commissioners of highways met on the day named in the notice, and went upon 
and viewed the line of the proposed road, and on the same day announced publicly that they 
would not order the road to be established, which decision was not committed to writing until 
two days afterwards, when it was filed in the office of the town clerk. Held, that this was a sub- 
stantial compliance with the road law. Anderson v. Wood et al., 80 111. R., 15. 

The fact that the commissioners, after they had lost jurisdiction by their ad- 
journment, agreed to discontinue an old road and open another, provided certain persons, in- 
cluding the defendant owning the land over which the new road was to be laid out, would 
donate to the public the lands necessary therefoK, and open the new road and put it in condition 
for public travel, without expense to the town, and that such person fulfilled these conditions on 
their part, and that thereupon the old road across defendant's land was closed by him with the 
approval of the commissioners, does not estop the state or the town authorities from insisting that 
the old road continued to be a public highway. State v. Castle, Sup. Ct. Wis., 1878. 

(1) Form of Order of Commissioners Vacating Road. 

State of Illinois, ) 

County, j-ss. 

Town of . j , . 

Whereas, on the day of A. D. 18—, we, the commissioners of 

highways of said town of , received a petition, in writing, of [here 

state the names of the petitioners'] praying for the vacating of a road therein 
and hereinafter described, said petitioners being freeholders residing in said 

town within three miles of said road; we did, upon said day of , A. 

D. 18—, fix upon the day of , A. D. 18— as the time when and 

as the place where we, the said commissioners of highways, would 

meet to examine the route of said road, and hear reasons for or against the 
vacating the same, and did give ten days' notice of the time and place of 
such meeting by posting up notices thereof in three of the most public 
places in said town, in the vicinity of the said road ; and having met at 
the time and place appointed, we personally examined the route of said 



DIV. il] altering, widening, vacating and laying out,* 159 

who shall report such survey and plat to said commissioners, giving 
the courses and distances, and specifying the land over which said 
road is to pass — in which they may make such changes between 
the termini of the road described in the petition, as the convenience 
and interest of the public in their judgment, may require. (1) 

road, to-wit : [here describe the road,'] and having heard such reasons as 
were offered for and against the vacating of said road, and being of the 
opinion that such vacating was necessary and proper, and that the public 
interest would be promoted thereby, we decided that the prayer of said 
petitioners should be granted. 

It is, therefore, hereby ordered and determined, and we do hereby order 
and determine, that said road be vacated and discontinued. 
In witness whereof, we, the said commissioners, have hereunto set our 

hands, this day of , A. D. 18—. 

S. H., ) Commissioners 
A.T., \ of 

E.B.J Highways. 
(1) Form of Surveyor's Report of Survey of Road. 

To the Commissioners of Highways of the town of , in the county 

of : 

The undersigned having been employed by you to make a survey of a 
road beginning, etc., [set forth the road as asked for in the petition,'] would 
report that the following is a correct survey thereof, as made by me under 
your directions, to wit: [here set forth the survey, the course, distance, etc.. 
as required by law,] and that herewith is a correct plat of said road, accord- 
ing to said survey. 
Dated this day of —. ,A. D. 18—. G. R., Surveyor. 

Form of Surveyor's Report of Survey of Alteration of Road. 

To the Commissioners of Highways of the town of , in the county 

of : 

The undersigned having been employed by you to make a survey of the 
alteration of a road beginning, etc., [here set forth the road and alteration 
us asked for in the petition,] would report that the following is a correct 
survey thereof as made by me under your direction, showing the line of 
alteration made, to-wit: [here set forth the survey of the line of alteration 
the corners, distances, etc., as required by law, noting briefly the points in 
the old road from which the alteration is made,] and that herewith is a 
correct plat of said alteration, according to said survey, showing as well 
said alteration as the route of the old road. 

Dated this day of , A. D. 18—. G. R., Surveyor. 

In the alteration of a road it is proper that the plat should show the location 
of the old road as well as the line of the alteration. In some states this rule is imperative 
State v. Lippencott, 1 Dutch R., (N. J.), 434. * 

The mere survey and platting of a road hy a surveyor under the direction of 
highway commissioners, does not have the effect to establish it as a highway; such a proceed- 
ing leaves the proof of the existence of the road precisely as it was before. It has, however the 
effect to stop the public from claiming that the road was upon a different line from the sur'vev 
Gentleman v. Soule, 32 111. R., 272. "' 

It is not essential to the validity of an order of commissioners of highways, 
or of the three supervisors who may act on an appeal from such commissioners, establishing a 
public highway, that the surveyor's plat, which the law requires shall appear, from such order 
to have been signed by the surveyor. Tower et al. v. PUstick, 55 111. R., 15. 

An unreasonable delay by the commissioners in causing a survey of a road to 
be made, and in depositing their order with the town clerk, will deprive them of jurisdiction' 
where the delay was 14 months, held, to be unreasonable and deprive them of jurisdiction to 
establish the road. Commissioners of Lavmdale v. Barry, 66 111. R., 496. 



160 ROADS AND BRIDGES. [DIY. IL 



DAMAGES — ASSESSMENT. 

Section. 

75. Damages to be first ascertained. 

76. Damages may be agreed upon, etc. 

77. Summoning jury to assess damages. 

78. Notice to owners. 

79. Manner of selecting j ury . 

80. Challenge of jurors. 

81. Notice to unknown owners. 

82. Service of notice. 

83. Oath of j ury— Trial. 

. 84. Trial— Verdict — Judgment. 

85. Separate assessments — Continuance, etc. 

86. Final decision by Commissioners — Notice. 

87. Commissioners may revoke proceedings. 

88. Order to alter, widen or lay out road — Plat — Filing papers— Recording 

89. When damages released or agreed upon. 

90. Inducement may be offered. 

91. Town clerk's record, etc., evidence — Effect of same. 

75. Damages to be first ascertained.] § 75. They shall also, 
before they order any road to be established, altered, widened, or 
vacated, ascertain, as hereafter provided, the aggregate amount, 
of damages which the owner or owners of land over which such 
road is to pass, shall be entitled to, by reason of the location^ 
alteration or vacation of such road: Provided, however, that in * 
case an appeal is taken from the assessment of damages before 
the justice of the peace, the commissioners may, in their discre- 
tion, make an order laying out, widening, altering or vacating 
such road, either before or after such appeal is determined, in the 
manner hereinafter provided. 

76. Damages may be agreed upon, etc.] § 76. The damages 
sustained by the owner or owners of the land, by reason of the 
establishment, alteration, widening or vacation of any road, may 
be agreed upon by the owners of such lands, if competent to con- 
tract, and the commissioners of highways, or they may be re- 
leased by such owners, in which case the agreement or release 
shall be in writing, and shall be filed and recorded with the copy 
of the order establishing or altering such road, in the town clerk's 
office, and shall be a perpetual bar against such owners, their 
grantees and assigns, for all further claims for such damages.(L) 

(1) Form of Agreement as to Damages in Laying Out Road. 

Whereas, a road was duly laid out on the day of , A. D.», 

18 — , by the commissioners of highways of the town of , in the county 

of , on the petition of the requisite number of freeholders, residing in 

said town within three miles of said road, as follows: commencing, etc., 
[insert description of the road as in the order,] which road passes through 
the land of P. F., being known and described as follows: [here describe the 
land with reasonable certainty.] Now, therefore, it is hereby agreed be- 



DIY. H.] DAMAGES — ASSESSMENT. 1G1 

77. Summoning jury to assess damages.] § 77. In case such 
damages are not released or agreed upon, as in the preceding 
section specified, the commissioners of highways shall, within 
twenty (20) days from the date of the meeting at which it was 
decided to grant the prayer of the petition, make a certificate 
that they are about to establish, widen, vacate or alter a public 
road, describing such road, vacation, widening or alteration, and 

tween the said commissioners and the said P. F., that the damages sus- 
tained by the said P. F., by reason of the laying out and opening said road 
upon his land, hereinbefore described, be liquidated and agreed upon at 

dollars. • 

In witness whereof, the said commissioners and the said P. F. have 

hereuuto subscribed their names the day of , A. D., 18—. 

N. W., ) Commissioners 
O. S., £ of 

W. H, ) Highways. 
P. F. 

Form of Release of Damages by Owner of Land. 

Whereas, a road having been duly laid out on the day of , 

18 — , by the commissioners of highways of the town of . in the coun- 
ty of , on the petition of the requisite number of freeholders, residing 

in said town within three miles of said road, as follows: [insert description 
of the route as set forth in the order laying it out,] which road passes 
through certain lands owned by me, being known as follows: [here insert 
description of lands.] Now, therefore, know all men by these presents, 

that I, A. G., for and in consideration of dollars received, do 

hereby release all claims to damages sustained by me by reason of laying 
out and opening said road through my said lands above described. 

In witness whereof, I have hereunto set my hand and seal, this 

day of , A. D., 18—. 

A. G. [SEAL.] 

Where commissioners of highways are unable to agree with the owner of land 
over which a highway is sought to be laid out, as to the damage to be paid him, they have no 
authority to submit "the question of such damages to arbitration, and thus bind their town. 
Mann et al v. Richardson, 66 111., R., 481. The law points out the method of proceeding in such 
cases. See 1 11. 

Concerning the talcing of private property for public use, the Constitution of Illi- 
nois, Art. 2, Sec. 13, declares that " Private property shall not be taken or damaged for public use, 
without just compensation." Although the property may not be actually taken, yet if it is dam- 
aged by the laying out and construction of the road the constitution requires that compensation 
should be made. In common speech, the compensation awarded tor the property taken is called 
the damages. The public is excluded from opening or using a road until the damages are as- 
sessed or agreed upon, or released in writing. Norton v. Studley, 17 111. R., 556. 

The compensation to toe paid for taking property for public use must be pecuniary 
in its character because it is in the nature of a compulsory purchase. Weckler v. City of Chicago, 
61 111. R., 1-12. 

In a later case it is held that the commissioners cannot lawfully proceed to open a 
road until the damages assessed to the owners of the lands taken have either been released, or 
they have been paid their damages, or that it be shown that there is money under the control of 
the commissioners with which to tender or pay the damages assessed. Hall et al. v. 27ie People ex 
rel., etc., bl III. R. 307. There can be no entrance upon or possession of land for public use. until 
the compensation for land damaged, and land taken is paid. The People v. McRoberts, 62 111. R , 
38. 

The full value of land taken for a putolic high way must be paid in money, alone dis- 
regarding all benefits and advantages that may result to that portion of the owner's land not 
taken, by reason of the establishing of the road ; and it is not in the power of the legislature to 
provide otherwise. Carpenter v. Jennings et al. 11 111. R., 250. 

Damages for opening a road are a personal claim assessed in favor of .the owner at 
the time of the injury, and do not run with the land. Tenbrooke v. Johke, 11 Penn. St. R., 392. 

11 



162 ROADS AND BRIDGES. [DIY. IL 



tlie land over or on which such road is to be established, altered, 
widened or vacated, and naming the owners of such land, if 
known, and if not known, stating the fact, and asking for a jury 
to assess the damages of such owners, and shall present such cer- 
tificate to some justice of the peace of the county, who shall 

Damages to which a land owner is entitled for the taking of his land for a highway 
are not taxable as a '"debt" before they become fixed and receivable. Lowell v. Boston, 106 
Mass. R., 540. 

It has been held in New York that an act of the legislature, giving to commissioners of high- 
ways the power to lay out new roads through wild or unimproved lands, without the consent of 
the owner, is unconstitutional and void, if no compensation is required to be made to such 
owner. Wallace V. Karlenowfski, 19 Barb. R., 118. Gould v. Glass, Id., 179. 

The commissioners, award should show that the question 6*f damages was taken into 
account in regard to all the property taken. 8 Minn. R., 491 ; 10 Id., 82. 

The acquisition of land by condemnation for a public road and payment of dam- 
ages to the owner, will give the public a right to construct a highway as deemed most expedient, 
and the owner cannot afterwards recover lor injuries then shown he must unquestionably surfer, 
but such condemnation is no bar to a suit for a subsequent injury growing out of negligence and 
unskill fulness of public authorities in constructing drains in the highways, resulting in serious 
injury to the owner. Tearney et al. v. Smith, 86 111. R.. 391. 

A party to whom damages have been awarded for the laying out of a highway 
through his land, has a right of action against the town therefor. A mandamus will also lie to 
compel the town to audit his claim. Van VleilexreL, etc., v. Wilson, 17 Wis. R., 687. But it is 
doubtful if an action would lie in the absence of an award, unless it appeared that tnere had 
been an attempt on the part of the owner to agree with the commissioners on the damages. 
Lincoln v. Colusa County, 28 Cal. R., 662. 

The right of taking private property for public use, as for a highway, is called the 
right of eminent domain, and may be exercised by the legislative power at all times, if just com- 
pensation is made to the owner. The aid of a jury, when compensation is to be made by the 
State, is not necessary under the constitution of Illinois. The instrumentality of commissioners 
is proper. Johnson v. Joliet and Chicago R. R. Co., 22 111. R„ 202. 

The right of the State to take private property for public uses cannot be asserted 
by mere enactment. The Constitution providing that the citizen shaU not be deprived of prop- 
erty except by due process of law, or in conformity to the law of the land, requires a trial or 
judicial proceeding and a judgment. Cook v. South Park Commissioners, 61 111. R., 294. 

The law imperatively requires the commissioners to adjust the question of dam- 
ages to the owner of the land, beiore the road shall be opened or worked or used. It does not 
require the owner to be present and claim damages, to entitle him to compensation. It is the 
mutual duty of the commissioners and the owner to endeavor first to agree as to the damages. 
If they cannot agree, it is the duty of the commissioners to have a jury empaneled to assess the 
damages at what may be just and right. The case of Taylor v. Marcy, 25 111. R., 518, on this sub- 
ject is modified. An attempt to open a road in the absence of an adjustment of the question of 
damages with the owner of improved and cultivated lands upon which the road is located, will 
be restrained by a court of chancery. Commissioners of Highways v. Durham, 43 111. R. , 86. 

It is held in New Hampshire, that the doings of selectmen in laying out highways cannot be 
supported, unless it appear that due recompense was allowed to the owners of lands through 
which such highway was laid out, and that the owners had an opportunity to be heard upon 
the subject of damages. Pritchard v. Atkins. 3 N. Hamp. R„ 335. See also Curran v. Shattuck, 24 
Cal. R., 427. 

"When land is alleged to be injured by the location and opening of a highway through 
it, the measure of damages will be the difference between its market value, at the time, with the 
highway, and its market value without the highway. Sidner v. Essex, 22 Ind. R., 207. 

Where a road is ordered to be laid out through lands belonging to an estate, an as- 
sessment of the damages to the heirs of such an estate, is proper and legal. In such case, separate 
damages cannot be assessed to the widow on account of an unassigned dower interest. An adjust- 
ment of the equities between the fee and the contingent right of dower, must be left to the widow 
and the heirs. Tedemier et al. v. Aspenwall et al., 43 111. R., 401. 

After the owner of land has accepted the damages awarded to him for opening 
a highway on his land, it is too late for him or his grantee to claim that the proceedings foi 
opening it are invalid. Town v. Town of Blackberry, 29 111. R., 137. 

Where a highway is laid out along the line of a farm, taking no portion of the land 
of the owner, but subjecting him to the expense of maintaining the whole of the fence, the ex- 
pense of the half of which only was formerly borne by him, held that such owner is not entitled 
to compensation ; and although damages are allowed to him, the supervisors of the county have 
no authority to cause the same to be collected. Peoples. Sups. Oneida Co., 19 Wend. R., 120. 

Under the constitution of 1848, and the statutes in force March, 1870, a party is not entitled to 
damages by reason of the construction of a highway adjoining and abutting against his lands, 



DIV. II.] DAMAGES — ASSESSMENT. 163 

summon a jury of twelve (12) persons, at least one-half of whom 
shall be residents of the town in which the proposed road is lo- 
cated, having the qualifications of jurors, to appear before such 
justice of the peace at a time to be fixed by him, within ten (10) 
days from the time such certificate was presented to him, to assess 
such damages. (1) 



where no part thereof has been taken for the use of the road. So, where a public road is estab- 
lished adjoining the land of another, the town officers may, in opening the same, discontinue 
a division fence without any damage accruing thereby to the owner of the land adjoining which 
the road is established. Hoag v. Switzer et al., 61 111. R., 294. 

The right of the owner to the damages assessed becomes fixed and vested as soon as 
assessed ; and it is held that such right cannot De divested by a subsequent repeal of the statute 
under which the damages were assessed; that the public use of a highway being but an ease- 
ment, subject to which the owner of the land over which it passes retains his title, there is al- 
ways a contingency by which the owner may return into full possession of the land on its being 
no longer required by the public. When this contingent event will happen is ordinarily un- 
known, and is wholly immaterial, as regards the rights of the landholder, whether the public 
obtains the use of the land for a century or for a year, or but for a single day, cannot affect his title 
to a compensation. The People ex rel. Fountain et al. v. Supervisors Winchester Co^ 4 Barb. R., 276. 

Held also in Massachusetts, that where damages upon laying out a road have been assessed or 
awarded to an individual, the town would be liable for the amount thereof, although the road 
had been discontinued before payment, and in fact never entered upon ; that the owner had a 
vested right to such damages, and was entitled to a writ of mandamus to compel payment. Har- 
rington v. Berkshire, 22 Pick. R., 263. 

The tee of the land in the highway, whether it be laid out by law or granted by the 
owner for a highway, remains in the owner, and he may maintain an action of trespass for cut- 
ting timber therein, or for any exclusive appropriation of the soil. He is entitled to the same 
remedies for an injury to his residuary interest that he would be entitled to if it was entire and 
absolute. Babcock v. Lamb, 1 Cowen R.. 238 ; Gidney v. Earle, 12 Wend. R., 98 ; 3 Hill R., 567. The 
owner retains the exclusive ownership of every thing connected with the soil for every purpose 
not incompatible with the public right of way. A spring in such a road is not a part of the high- 
way and not an incident to the use of the same. Town of Old Town v. Dooley, 81 111. R., 255. But 
it is otherwise in case of streets dedicated by a town plat duly recorded. Hunter v. Middleton, 
13 IU. R., 50. 

As a public highway is a mere easement and the seizing and right to convey still 
continue in the owner of the land over which it is laid out, it is no breach of the covenant of 
seizin and power to convey contained in the deed, that part of the land conveyed was a highway 
and used as such. WhUbeck v. Cook, 15 Johns. R., 483. 

The constitution of Illinois declares, Art. 2, § 13, that " the fee of land taken for rail- 
road tracks, without consent of the owners thereof, shall remain in such owners, subject to the 
use for which it is taken." 

(1) Form of Commissioners 1 Certificate and Application for a Jury, 
State of Illinois, 1 

County, J 

To , Esq., a Justice of the Peace of said County : 

This is to certify that we, the commissioners of highways of the 'town 
of , are about to lay out [or as the case may be,] a public road de- 
scribed as follows, to wit : Beginning [describe the route as set forth in 
the petition,] which said road passes over, and is supposed to damage the 
land, described and owned as follows, to wit : [here describe the land, and 
state the names of owners, if known; if owners are unknown or non-residents, 
state the facts']. That we have not been able to agree with [state names of 
owners disagreeing with the commissioners,'] owners, as aforesaid, as to the 
damages sustained by them by reason of the proposed laying out [or as the 
case may be,] of said road over their lands, nor have said damages been by 
them released. We, therefore ask for a jury to assess the damages of said 
owners. 

Given under our hands this day of , A. D. 18—. 

A. B.,) Commissioners 
C. D., \ of 

E. F.J Highways. 



164 ROADS AND BRIDGES. [DIY. IL. 

78. Notice to owners.] § 78. The commissioners of highways 
shall also notify each and every owner of land — if known, and a 
resident of the county — whose damages are to be assessed, that 
they will apply to some justice of the peace of the county (giving 
the time when and the place where) to have a jury impaneled to 
assess such damages. (1) 

79. Manner of selecting jury.] § 79. Upon the presentation 
of such certificate by the commissioners of highways, the justice 
of the peace shall forthwith issue a venire directed to any con- 
stable of the county, to summons twelve persons having the quali- 
fications of jurors, to appear at such time and place as may be 
designated for the trial of such cause, whose competency shall 
be determined the same as in other civil cases before justices. (2) 

80. Challenge of jurors.] § 80. At the trial of the case, either 

(1) Form of Notice to Land Owners of Application for Jury to Assess 

Damages. 
State of Illinois, \ 

County, / 

To E. B. : 

This is to notify you that on the day of , A. D. 18 — , at — 

o'clock — M., we, the undersigned commissioners of highways of the town 

of , in said county, will apply to L. M., Esq., a justice of the peace 

of said county, at , to have a jury empaneled to assess the damages 

to which you may be entitled by reason of the laying out of a public road 
[or as the case may be] over certain land by you owned, as by us determined. 

Given under our hands this day of , A. D. 18 — . 

A. B.,) Commissioners 

C D., \ of 

E. F.,J Highways. 

Commissioners of high ways do not acquire jurisdiction to make an order laying 
out a road until notice in writing has been given to owners of land through which the road "is to 
run, as the law provides, and the recital in their order that such a notice has been given, is not. 
of itself evidence that the required notice has been given. Willis v. Smith, 14 N. Y. R., 17; see, 
also, Skinner v. Lake View Av. Co., 57 111. R., 151. 

(2) Form of Venire to Summon Jury to Assess Damages. 
State of Illinois, \ 

County, j 

The people of the State of Illinois to any constable of said county. Greeting t 

We command you to summon twelve lawful men of your county, at 

least one-half of whom shall be residents of the town of [name of town in 

which proposed road is located'] to appear before me at , on the 

day of , 18 — , at — oclock — M., who are not of kin to [name of land 

owners], make a jury to assess the damages of the persons aforesaid sus- 
tained by reason of the establishment [or alteration, or widening, or vaca- 
tion] of a certain proposed road in said town of proceedings, in 

which are pending before me, and have you then and there the names of 
the jury and this writ. 

Witness my hand, this day of , 18 — . 

John Doe, J. P. 

The jurjr will "be summoned oy the constable and returns made in like manner as 
other juries in civil actions before justices of the peace. 

Concerning the qualification of jurors and mode of proceeding to determine compe-. 
tency, see Haines' Tbeatise, New Ed., title " Of the Jury," p. 383. 



©IV. II.] DAMAGES — ASSESSMENT. 165 

party sliall have the right of challenge as in other cases ; and 
-any deficiency in the number of jurors, from whatever cause, shall 
be supplied by summoning other persons residing in the town- 
ship, or in an adjoining township, in the same manner as in a 
civil case.(l) Such justice of the peace shall notify the owners 
of such land mentioned in such certificate to appear at the same 
time before such justice to prove their damages. (2) 

81. Notice to unknown owners.] § 81. In case it shall appear 
either from the certificate of the commissioners, the affidavit of 
any person, or the return of any officer to whom the notice may 
be delivered for service, that there is an unknown owner or owners 
who cannot be found and served within the county, such justice 
shall also cause notice to be posted in three of the most public 
places in the vicinity of such proposed road or alteration, at "least 
six days before the time fixed for the appearance of such jury, 
stating when such jury is to be impaneled by him, and describing 
the road to be established, altered, widened or vacated as peti- 
tioned for, and the lands for which damages are to be assessed. (3) 

(1) Concerning the challenging of jurors, the general rule in this regard governing 
•civil actions before justices of the peace will be observed. The law in full on this subject will 
be found in Haines' Treatise, New Ed., title " Of the Jury," p. 383. 

It seems that additional jurors, if required, are to be s umm oned from the township 
where the proceeding is pending, or an adjoining township. 

(2) Form of Justice'' s Notice to Land Owner to Prove Damages by Laying 

Out of Road, etc. 
State of Illinois, > aa 

— County, 5 

To Mr. J. L. : 

Whereas, the commissioners of highways of the town of , have 

presented to me a certificate stating that they are about to lay out a public 
road [or as the case may be] described as follows : [here describe the road 
as petitioned for], and said commissioners ask for a jury to assess the 
damages to which the owners of lands may be entitled by reason of the 
laying out of said road over the same [or as the case may be,] in which 
certificate you are named as the owner of a portion of said land, to wit: 
[describe the lands]. You are, therefore, hereby notified to appear before 

me at , on the day of , A. D. 18—, at the hour of — o'clock 

— M., to prove the damages by you sustained in the premises, when a jury 
•will be empaneled by me to assess the same. 

Given under my hand, this dav of , A. D., 18 — . 

A. B., 
Justice of the Peace. 

(3) The form of notiee for posting in case of non-residents, or unknown owners, 
-•may be the same as that served on resident owners. 

The certificate of the commissioners, affidavit of an individual or return of an officer 
• as to non-residents or unknown owners, should properly be endorsed on the notice. The follow- 
ing may be the form in each instance : 

JPorm of Certificate of Commissioners of Highways when Owners of Land 

are Non-residents or Unknown. 
State of Illinois,) 

County, / Sft - 

We, the commissioners of highways of the town of , in said 



166 ROADS AND BRIDGES. [DIV. TL 

82. Service of notice.] § 82. The notice to such owners of 
lands may be served by any constable or one of the petitioners, or 
other person of lawful age, at least five days before the time of 
appearance. If any of such owners is an infant, such summons 
shall be served by delivering a copy to the infant or its guardian,, 
if any ; if no guardian, the person with whom he or she resides- 
If any owner is a lunatic, or habitual drunkard having a con- 
servator, or insane, by delivering a copy to his conservator, if 
any ; if any such owner is a married woman, by delivering a copy- 
to her.(l) 

83. Oath of jury— Trial— Change of venue.] § 83. The jury 
shall appear before and be sworn or affirmed by such justice, faith- 
fully and impartially to assess the damage of each of the owners 
specified in such certificate, or those of them whose claims are 
then to be adjusted according to law, to the best of their judgment 
and understanding ; and all parties in interest shall be entitled to 
subpoenas and other writs and papers, and the trial shall be con- 
ducted as in other civil cases :(2) Provided, changes of venue 

county, do certify that L. M., named in the within notice, is a non-resi- 
dent [or unknown] owner and cannot be found and served within said 
county. 

Witness our hands, this day of , A. D. 18—. 

N. P., ) Commissioners 

W. C, \ of 

J. W., ) Highways. 

Form of Affidavit of Persons that Owner of Land is Non-resident or 

Unknown. 
State of Illinois, \ co 

County, | ss - 

G. H., being duly sworn, doth depose and say that L. M., named in the 
within notice, is a non-resident [or unknown] owner, and cannot be found 
and served within said county. G. H. 

Subscribed and sworn to before me this day of , A. D. 18—. 

S. W., Justice of the Peace. 

Form of Return of Officer when Owner of Land is Non-resident or 

Unknown. 

I return the within notice this day of , 18 — , not served, the 

within named L. M. being a non-resident [or unknown] owner, and can- 
not be found and served within said county. 

R. S., Constable. 

(1) The return of the constable should "be endorsed on the notice as in other cases, 
and should set forth the manner of service. It is proper that the service should be both by 
reading and leaving a copy, in each instance. The following may be the general form of return : 

Served the within notice, by reading to, and leaving a copy thereof with, 

the within named L. M., the day of , 18—. 

R. S., Constable. 

(2) Form of Oath of Jury for Assessment of Damages. 
You, and each of you, do solemnly swear that you will faithfully and' 
Impartially assess the damages of each of the owners of land involved iE> 



DIY. II.] DAMAGES — ASSESSMENT. 1G7 

may be granted, if applied for before the commencement of the 
trial, under the same rules and regulations as other civil causes 
before justices of the peace. (1) 

84. Trial— Yerdict— Judgment] § 84. The jury shall hear 
such lawful evidence touching the question of such damages, as 
may be presented to them ; and shall also, on request of a ma- 
jority of the road commissioners or owners of lands whose dam- 
ages are to be determined, in a body, visit and examine the pro- 
posed location, alteration, widening or vacation of such road, and 
the lands to be taken and affected thereby, and make a written 
verdict, specifying the amount of damages, if any, which each 
such owner shall recover and return the same to such justice, to 
be by him entered on his docket, in the nature of a judgment, to 
be paid by such commissioners, together with the costs of such 
suit, in case they shall finally determine, to establish, alter, or 
widen or vacate such road, and the money therefor shall be paid 
by the town, out of the funds in the hands of the treasurer of the 
commissioners of highways, raised for road and bridge purposes: 
Provided, that in estimating the damages, the jury may consider 
the benefits conferred, or may disregard such benefits ; but no 
benefits enjoyed in common by the owners of surrounding prop- 
erty shall be considered in estimating damages.(2) 

the matter now in hearing, according to law, to the best of your judg- 
ment and understanding. 

Tlie compensation for property damaged as well as taken, when not made by 
the state, must be ascertained by a jury. The People v. McRoberts, 62 111. R., 38 ; Kine v. Deten- 
baugh, 64 111. R., 291. 

(1) Concerning rules and regulations for change of venue in civil cases before 
justices of the peace, fully set forth, see Haines' Treatise, title " Trial and Incidents Thereto, H 
new ed., p. 375. 

(2) Form of Verdict of Jury Assessing Road Damages. 

State o f^Illmois, ) sg Before Am B#> j ust ice of the Peace. 

VERDICT OF JURY. 

In the matter of the Assessment of Damages consequent upon the laying 
out [or as the case may be] of a road over lands described and owned 
as follows, viz.: 

Description of Land j Owned by 

. ! 

We, the jury, summoned to assess damages in the above cause, having 
taken the oath required by law, and having heard the evidence presented, 
and having in a body visited and examined [if such is the fact] the location 
of the said road, the lands to be taken and affected by the proposed laying 
out of the same [or as the case may be,] do assess the damages at what we 
deem just and right to each of said claimants, as follows, viz.: 

To the said C. D., the sum of dollars. 

To the said E. F., the sum of dollars [and so 071.1 

The above verdict given under our hands, this day of , A. D. , 18—. 

[Signed by all the jurors.] 



168 EOADS AND BKIDGES. [DIY. II. 

85. Separate assessments — Continuances, etc.] § 85. Pro- 
vided, that when there are several such owners, the jury may as- 
sess the damages of one or more, or all of them, at the same time, 
or they may assess such damages at different times, or there may 
be different juries and trials at different times, for different owners, 
if any owner shall demand a separate trial ; and any such assess- 
ment of damages may be continued from time to time for good 
cause, with the like effect as continuances in other cases before 
justices of the peace. 

86. Final decision by commissioners— Notice.] § 86. Within 

thirty days after the total amount of damages shall have been ascer- 
tained, either by release or agreement of the parties, or by assess- 
ment before a justice of the peaca and a jury, in the manner here- 
inbefore provided, the commissioners shall hold a meeting to 
finally determine upon the laying out, altering, widening or vaca- 
tion of such road, of which meeting said commissioners shall give 



Under Section 13, of Article 3 of tlie Constitution, the full -value of land taken for 
a public highway must be paid in money alone, disregarding all benefits and advantages that 
may result to that portion of the owner's land not taken, by reason of the establishing of the road, 
and it is not in the power of the legislature to provide otherwise. Where the record of the pro- 
ceedings by Commissioners of Highways in laying out a road over a party's land, shows that the 
jury, in assessing the compensation to be paid the owner, undertook to pay him in part in benefits 
to his other land by the construction of the road, and not wholly in money, it was held, on ap- 
plication for a certiorari, that the jury transcended their powers, and their action was void, and 
that it was error to refuse the writ. Carpenter v. Jennings et al. 77 111. R., 250. 

Tlie justice before -whom proceedings are liad in assessing damages for highway 
purposes should make an entry thereof in his docket as in other cases. The following may be 
the form of docket entry. 

Form, of Docket Entry by Justice. 
State of Illinois, 
County, 



5 '}ss 



Matter of Application of Com'rs of Highways, ) T>^f^ a T ^r -r.^+i^^+v^ 

of the Town of , for Jury to Assess [ Before L - f'„ ^ticeof the 

Damages to Land for Highway Purposes. J Jreace. 

18 — , . The Commissioners of Highways of the Town of , pre- 
sent a certificate showing that a jury is required to assess the damages of 
A. B., C. D. and E. F., owners of lands desired to be taken for highway 
purposes, asking a jury to assess the same. 

Venire for jury of twelve persons, issued and delivered to constable R. S. 

Notice to owners of land, mentioned in commissioners' certificate, issued 
and delivered to constable R. S. to serve. It appearing that I. K. and O. 
P., named in said certificate, are non-residents, notice to them was caused 
to be posted, as required by law, six days before the time fixed for the ap- 
pearance of the jury. 

(Date.) Venire returned, jury appear, and are duly sworn. Having heard 
the evidence presented, the jury retire and return their verdict in writing, 
that [set forth the substance of the verdict.] 

It is therefore considered by the court that [names of owners'] each have 
and recover, to be paid by said commissioners of highways, with the costs 
of suit, the sums following : 

The said A. B., the sum of dollars. 

The said C. D., the sum of dollars. 

The said E. F., tlie sum of dollars, etc. 



DIV. H.] DAMAGES — ASSESSMENT. 169 

public notice, by causing not less than three notices thereof to be 
posted in public places within the town, at least five days prior 
thereto.(l) 

87. Commissioners may revoke proceedings.] § 87. In cases 
where the damages are not wholly released or agreed upon, and 
the commissioners shall be of the opinion that the damages as- 
sessed by the jury are manifestly too high, and that the payment 
of the same would be an unreasonable burden upon the taxpayers 
•of the town, the commissioners may revoke all proceedings had 
upon the petition by a written order to that effect. And such 
revocation shall have the effect to annul all such proceedings and 
assessments, releases and agreements, in respect to damages 
growing out of the proceedings upon the petition. (2) 

88. Order to alter, widen, or lay out road— Plat— Filing Papers 
— Recording.] § 88. In case the commissioners shall not revoke 
such prior proceedings, they shall make an order to be signed by 
them, declaring such road so altered, widened or laid out a public 
highway, and which order shall contain or have annexed thereto a 
definite description of the line of such road, together with a plat 
thereof. The commissioners shall, within ten days from the date 
of such order, cause the same, together with the report of the 
surveyor, the petition and releases or agreements in respect to 

(1) Form of Commissioners' Notice for Final Meeting. 

HIGHWAY NOTICE. 

Notice is hereby given, that the undersigned, commissioners of high- 
ways of the town of , in the county of , and State of Illinois, will 

meet on the day of , A. D., 18 — , at o'clock — . M., at [state 

the place of meeting,] to finally determine upon the laying out of a road 
[or as the case may be,] described as follows, to-wit.: 

Beginning [here describe the road,] the petition for which road has been 
heretofore considered and the prayer thereof granted, the route surveyed 
and the total amount of damages consequent upon the laying out of the 
same [or as the case may be,] having now been ascertained. 

Dated this day of , 18 — . 

A. B.,) Commissioners 
J. K., \ of 

L.M.J Highways. 

The commissioners must lay out the whole road as applied for. They cannot disre- 
gard the application and lay out only a part of it. People v. SprinyweUs, 12 Mich. R., 434. 

(2) The order revoking proceedings upon a road petition for the reasons mentioned 
in this section may be indorsed on the petition, and may be in the following words : 

We, being of opinion that the damages assessed by the jury in the within 
case are manifestly too high, and that the payment of the same would be 
an unreasonable burden upon the taxpayers of the town, do hereby revoke 

all proceeding had upon the within petition, this day of , A. D., 

18—. 

R. P., ^) Commissioners 

J. K., \ of 

L. M.,J Highways. 



170 ROADS AND BRIDGES. [DIY. II- 

damages, to be deposited and filed in the office of the town clerk,, 
who shall note upon such order the date of such filing. ( 1) It shall 
be the duty of such clerk, after the time for appeal to supervisors 
has expired, and in the case of such appeal, after the same shall have 
been determined, if the prayer of the petition is granted, to record 
such order, together with the plat of the surveyor, in a proper 
book to be kept for that purpose. (2) 

(l)The petition of freeholders for a highway is a public document, and be- 
longs in the town clerk's office. If a stranger, not a commissioner of highways, gets possession 
of it, the court will compel him by attatchment to file it with the town clerk, for the inspection 
of one who is prosecuting a mandamus to compel the opening of the road. People v. Vail, 2" 
Cowen E,., 623 ; 1 Cowen K,.. 589. 

(2) Form of Order Laying Out, Altering or Widening Highway where Damages 

are Assessed. 
State of Illinois 

County- 
Town of 



■}■ 



Whereas, on the day of , A. D. 18 — , we, the commissioners of 

highways of the town of , received a petition in writing, of {here 

state the names of the petitioners'] praying for the laying out [or altering, 
or widening] of a road as therein and hereinafter described, said petition- 
ers being freeholders residing in said town, within three miles of the said 

road [or proposed road] ; and said commissioners did, upon said day 

of , 18 — , fix upon the day of , 18—, at o'clock — M., as 

the time when and [here state the place of meeting] as the place where 

we would meet to examine the route of said road, and to hear reasons for 
and against the laying out of the same [or as the case may be] and gave 
ten days' notice of the time and place of such meeting by posting up 
notices thereof in three of the most public places in said town, in the 
vicinity of said road [or proposed road] ; and having met at the time and 
place appointed* [if the meeting is adjourned state the facts], and having 
examined the road [or proposed road] in said petition described, and heard 
such reasons as were offered for and against the laying out said road [or 
as the case may be], we were of the opinion that the laying out of said 
road [or as the case may be] was necessary and proper, and that the pub- 
lic interest would be promoted thereby. We, therefore, caused a survey 

and plat of said road to be made on the day of , 18 — , by 

A. B., a competent surveyor, which plat and survey were to us duly re- 
ported, and are hereunto annexed and made a part of this order ; and 
having ascertained the aggregate amount of damages to which the owners 
of the land over which said road was to pass were entitled, and said dam- 
ages having been definitely fixed by [here state the method by which the 
damages were ascertained. If the appeal was taken from the verdict of a 
jury and decided before making this order, here state the facts], we ap- 
pointed the day of , 18—, at o'clock — M. (being 

within thirty days after the total amount of damages was ascertained). 

at [state the place of meeting], as the time and place to meet and 

finally determine upon the laying out of said road [or as the case may be] r 
of which meeting we gave public notice by causing three notices to b& 
posted in public places in said town not less than five days prior thereto; 
and having met at the time and place appointed, and the aggregate 
amount of damages on account of laying out of said road [or as the case 

may be], to-wit: the sum of dollars and cents, appearing to be 

not more than reasonable compensation, and to have been fairly and 
legally assessed, and the payment thereof not an unreasonable burden 



DIV. H.] DAMAGES — ASSESSMENT. 171 

89. When damages released or agreed upon.] § 89. In cases 
where the damages claimed by the land owners for the right of 

upon the taxpayers of the town, and having made such changes in the 
route of said road between the termini thereof as in our judgment the 
convenience and interest of the public required, as will fully appear from 
the survey and plat aforesaid, and description hereinafter contained, it 
was finally determined that the said road be laid out [or as the case may 
be]. It is, therefore, hereby ordered and determined that the said road be 
and is hereby laid out [or as the case may be], as follows, to- wit : begin- 
ning [here describe the road], as shown by the plat hereunto annexed, and 

as so laid out [or as the case may be] is declared a public highway 

of feet wide, the line of said survey being the center of said road. 

In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , 18. 

R. Ii.,^ Commissioners 
E. S., \ of 

H. P., J Highways. 

If the meeting of the commissioners of highways is adjourned, that fact should be stated at 
the proper place in the above form, at the *, in the following words : 

11 We did adjourn said meeting by public announcement, and by the 
posting of a notice at the time and place named for the first meeting, 

until the day of , A. D. 18 — , at o'clock — M. (the same 

being within twenty days from the time of the first meeting), to the [state 
the place] , and having met at the time and place appointed for such ad- 
journed meeting, at the time last aforesaid. 

It is no valid objection to the form of an order establishing a highway that it con- 
tains lengthy recitals where the facts recited are material to the validity of the proceedings. An 
order without these recitals, or statement of facts produced in a collateral proceeding might well 
be rejected as insufficient in not showing affirmatively that the antecedent of jurisdictional steps 
had been complied with. The order should properly show that the commissioners acquired 
jurisdiction of the case by petition in due form of law, and that they subsequently pursued the 
requirements of the law. in laying out and establishing the road. It will then be received as 
prima facie evidence of the facts it contains. Wells el al. v. Hicks, 27 111. R., 343 ; G. and C. U. R. 
R. Co. v. Pond, 22 Id., 399 : see Harrington v. People, 6 Barb. R., 607 ; Cassidy v. Smith, 13 Minn. R. 

A full recital in the final order establishing a road of a strict 1 performance of the 
duty of the commissioners in laying out the same is sufficient to confer jurisdiction and sustain 
the proceedings. So, where the recital in the order establishing a road showed that notices for 
hearing reasons had been duly posted, it was held on certiorari sufficient evidence of that fact 
That after this order had been duly deposited by the commissioners and filed in the office of the 
town clerk, there could be no higher or better evidence of the facts therein recited than the 
order itself furnished. Shinkle et al. v. Magill et al., 58 111. R., 422. 

No particular form of words is necessary in the order establishing a road, if 
the facts sufficiently appear. Tucker v. Rankin, 15 Barb. R„ 471. Where the words used were 
" have and do lav out a highway," it was held to import that the road was laid out at the date of 
the order. Fowler v. Mott, 19 Wend. R., 204. 

The order should he signed by the commissioners, and to show that they acquired 
jurisdiction, it should set forth the posting of notices as the law provides. Shinkle v. Magill, 5& 
111. R., 422; Wiley v. Town of Brimfield, 59 111. R., 306. 

The order must be made at a meeting held within the time prescribed by the 
statute, unless there shall be an adjournment, of which there should be a record. If the order 
is made at a meeting held after the time prescribed and there appears no record of adjournment, 
it will be held void on certiorari. Wood v. Commissioners of Highways, 62 111. R., 391. 

Where an order of the commissioners declaring a road established did not give the exact date 
of the meeting to hear objections, held, that a fair construction of the order indicated that such 
meeting was held in apt time. Wiley v. Town of Brimfield, 59 111. R., 306. 

The maxim that " that is certain which can be rendered certain," applies to the order of the 
commissioners of highways establishing a public road. When such an order failed to show with 
certainty the precise location of the road, but it was described with reasonable certainty in the 



etition, and particularly described in the plat of the survey, which was made part of the order. 

[eld. that the plat was a part of the order, which, as well as the petition, might be consulted in 

determining the location of the road. The order was therefore sustained. Clifford v. Town of 



pe 
Ht 



Eagle, 35 111. R., 444. The description of a road is sufficiently certain, where, from the whole- 
proceedings thereon, there appears no difficulty in locating it. Todemier et al. v. Aspinwall et oZ.,, 
43 I1L R., 401. 



172 ROADS AND BRIDGES. [DIV. EL 

way is released, or is agreed upon between the land owners and 
the commissioners, the commissioners, may, at their first meet- 

Although a road cannot l>e located from a mere reference to the calls and dis- 
tances given in the order establishing it, yet if the court can be satisfied, on calling surveyors and 
receiving proof on the points of location, that the location of the road can be ascertained, the 
order will be deemed sufficient. Com'rs of Highways v. Tlie People, 38 111. R., 348. 

It is necessary to the -validity of the proceedings in laying out a road, that 
there should be a report and survey. These, and a plat of the road, must accompany the order 
establishing the road. Town v. Town of Blackberry, 29 111. R., 137. 

After all parties in interest hare been fully heard, the commissioners may pro- 
ceed and lay out the road at an adjourned meeting without any new notice. Westport y. Co. 
Com'rs, 9 Allen R. (Mass.), 203. 

The acts of a majority of the commissioners, in establishing or vacating highways, 
will be legal and binding, but all should have notice of meetings to consider any subject. Com'rs 
of Highways v. Swan, 65 Barb. R., 210. Where an order establishing a highway, or an instrument 
for other purposes, is signed by two of the three commissioners, it will be presumed that the 
third was present and took part in the proceedings. Louks v. Woods, 15 111. R., 256 ; Evans ex rel., 
etc., v. JanUs et al., 4 Wis R., 408 ; see ante, sec. 10, par. 2d, p. 120. But one commissioner cannot 
lawfully sign the name of another, and make the instrument valid, unless by his direction or 
assent. Evans tx rel., etc., v. James et al., 4 Wis. R.. 498. 

Held, in New York, that an order laying out a highway, signed by only two commissioners, 
and not showing that the third commissioner met and deliberated with them upon the subject 
matter of the order, or that he was duly notified of the meeting and failed to attend, is void. 
Slewart v. Wallis, 30 Barb. R., 344 ; People v. Hynds, 30 N. Y. R., 470 ; People v. Commissioners of 
Highways, 27 Barb. R., 94. 

After the location of a highway has been determined by the commissioners, the 
survey is a mere ministerial act, and could probably be conducted without the presence of a ma- 
jority of the commissioners. Marble v. Whitney, 28 N. Y. R. (1 Tiffany), 297. 

The survey and plat of a public road is evidence of its location, but is not conclus- 
ive ; like field notes of the government surveys, parol evidence may be received to show that the 
Toad was actually located differently from the calls in the survey of the road. Hiner v. The Peo- 
ple, 34 111. R., 297. 

Tlie order with the petition should be deposited with the town clerk, who should 
note the time of filing the same. This must be done by the clerk within a reasonable time after 
the fact occurs. But his neglect to mark the correct time of filing will not be fatal. A substan- 
tial compliance with the requirements of the statute is all that is necessary. Town v. Town of 
Blackberry, 29 111. R., 137. 

Where copies of a petition for laying out a road were duly posted on March 14, 1870. and the 
•commissioners of highways did not cause a survey of the road to be made until June 19, 1871, 
and on June 24, 1871, they deposited with the town clerk an order establishing the road, in which 
it was recited, that on April 13, 1870, they examined the proposed route and determined to lay 
out the road. Held, that the delay in causing the survey to be made, and in making the order 
and depositing it with the town clerk was unreasonable, and that thereby the commissioners lost 
.jurisdiction to establish the road. Commissioners, etc., v. Barry, 66 111. R., 496. 

The proceeding for the laying out of a road, when commenced should be pursued 
with reasonable dispatch to their completion. No specific time is required by the statute within 
which to file the order of the commissioners establishing the road in the office ot the town clerk, 
It should be filed in a reasonable time. A failure in this respect will be an abondonment of the 
proceeding. Conors of Highways v. Barry, 66 111. R., 496; citing Townw. Town of Blackbtrry, 29 I1L 
R., 137 ; Allison v. Commissioners of Highways, 54 111. R., 170. 

Upon an application to lay out a road, it is not sufficient to lay out a part only ; 
fhe application can be complied with only by laying out the whole road according to the prayer 
thereof. And where a road is regularly applied for and the commissioners decide to lay out a 
part onlv, any person through whose land the road runs, as laid, is entitled to take steps to test 
■the valfdity of their action. People v. Town Board of Springwells, 12 Mich. R., 434. And it is 
equally objectionable where the road is extended beyond the termination mentioned in the pe- 
tition, as to that portion extended. State v, Motly, 18 Iowa R., 525. 

An order altering a highway is in law a discontinuance of that part of the road not 
within the bounds ot the alteration, without any special order of discontinuance. Rowley v. 
Walker. Allen R. (Mass.), 21. 

If the public is to be charged -with the abandonment of a road, the proof of the 
act must be accompanied by the further proof that another road has been adopted in its stead. 
A public road, established by public authority, continues as such until it shall be vacated by a like 
authority. Champlin v. Morgan, 20 111. R., 181 ; Town of Lewidown v. Proctor, 27 111. R., 414. 

Certiorari is a proper proceeding to test the validity of procedings in laying out 
•a highway, whether by commissioners or supervisors, on appeal. This writ brings up for review 
the whole proceedings in laying out the road, and any defect in the original proceedings may be 
objected to. If the proceedings are found irregular they will be quashed. Vwigld v. City Coun» 
cU of Springfield, 4 Gray R. (Mass.), 107 ; State v. Vuncleuve, 1 Dutch R. (N. J.), 233; Town of Winfield 
«*. Moffatt, 42 111. R., 48. 



DIV. II.] DAMAGES — ASSESSMENT. 17$ 

ing, or at any adjourned meeting, examine the route of the road, 
and cause a survey thereof to be made, and make their order 

The 9th section of the act of 1835, entitled "an act concerning public roads," requires an order 
of the county commissioners' court to locate a new road and to alter or vacate public roads (state 
roads excepted), and when the proceedings had, under said act, to lay out and establish a new 
road, merely show the petition for the road, the appointment of viewers, and their report, the 
proceedings are insufficient to establish the road. Nor will any subsequent proceedings "to 
alter, relocate, or open said road," which are based upon the assumption that the road, then 
existed by force of the former and original proceedings, have the effect to establish such high- 
way. Dempsey v. Donnelly, 58 111. R., 40. 

The provision requiring the commissioners to keep a correct record of their proceedings at all 
meetings, ante, \ 13 p. 127, would require them to keep a record of their proceedings at meetings 
in regard to laying out, altering or estaolishing roads. Their orders establishing roads, filed in 
the town clerk's office, may be considered a record to the extent of the matter set forth, but there 
should be a brief entry of their proceedings beyond what the order would properly show. For 
this purpose, they should provide a well bound book and cause brief entries to be made therein 
of their proceedings at all meetings. Inasmuch as this law now requires such record by the 
commissioners, it would follow that their acts at meetings could not be shown by parol, as was- 
formerly held in the absence of a record thereof. See Town of Old Town v. Dooley, 81 111. R., 255. 

As to the provision of law requiring the commissioners to keep a record of their 
proceedings at their meetings, see ante p. 127, § 13. 

The following maybe the form of recording the proceedings of the commissioners 
at meetings, in regard to highways : 

Board of Commissioners of Highways* Proceedings on Road Petitions. 
State of Illinois, 
County, 



U 



Town of 

The commissioners of highways of the town of met on the day of 

18—, at the hour of o'clock, — M., at , in said town, all 



having notice thereof; the following commissioners being present, to wit: 
[names of commissioners']. The petition of twelve freeholders was re- 
ceived praying that [state what is asked for by the petition]. The com- 
missioners fixed upon the day of , 18 — , at the hour of o'clock, 

— M., as the time when, and [state place] as the place where they would 
meet to examine the route of said road and hear reasons for or against the 
prayer of said petition, notice of which is ordered to be given pursuant to 
the statute. 
The commissioners met again at the time and place last aforesaid and 

considered the premises [or adjourned said meeting to the day of 

, 18 — , at , etc., as the case may be.] At the meeting at the time 

and place last aforesaid the commissioners decided [not] to grant the 

prayer of said petition ; and thereupon on the day of , 18 — , caused 

a survey and plat of said road, to be made by a competent surveyor, and 
the matter of damages by owners of land being settled and adjusted in the 
manner as provided by law, the commissioners ordered that [set forth 
briefly what is ordered, thus " that said road be established according to said 
survey," or as the case may be]. All of which is set forth and will fully 
appear by the original papers in said case returned and on file in the office 
of the town clerk. 

(Signed by the Commissioners.) 

The commissioners of highways are not made custodians of the final order 

establishing a road or any other paper connected therewith. They are required to deposit them 
after their proceedings are completed, in the office of the town clerk. In the absence of anv re- 

Suirement of the statute imposing on the commissioners the duty to deposit vi ith the town clerk 
leir notice to hear reasons, or to keep it themselves they will not be required to do either. There 
is no provision for the preservation of this notice. Their recitals in their order laying out a high- 
way in regard to such notice will be received as evidence thereof. Shinkle el al. v. Magill, 58 III 
E.,422. 

Commissioners of highways out of office cannot amend their return of their pro- 
ceedings already made, People v. Highway Com'rs, etc., 16 Mich. R., 63. 



174 EOADS AND BKLDGES. [DIY. II. 

establishing, altering, widening or vacating the road, according 
to the prayer of the petition, and return the same within the time 
and in the manner specified in this act.(l) 

90. Inducement may be offered.] § 90. Any person or per- 
sons interested in the establishment, alteration, widening or vaca- 
tion of any road in this state, are hereby authorized to offer 
inducements to the commissioners of highways, for the establish- 
ment, alteration, widening or vacation of any such road, by 



{l)Form of Order Laying Out, Altering or Widening Highway where 
Damages are Released or Agreed Upon. 
State of Illinois, ] 

County, V ss. 

Town of J 

Whereas, on the day of , A. D. 18 — , we the commissioners of 

highways of said town of , received a petition in writing, of [here 

state the names of the petitioners,] praying for the laying out [or altering 
or widening] of a road as therein and hereinafter described, said peti- 
tioners being freeholders residing in said town, within three miles of the 

said road [or proposed road] ; and said commissioners did, upon said 

day of , 18 — , fix upon the day of , 18 — , at — o'clock, — M., as 

the time when and as the place where we would meet to examine 

the route of said road, and to hear reasons for and against the laying out 
of the same [or as the case may be,] and give ten days notice of the time 
and place of such meeting by posting up notices thereof in three of the 
most public places in said town, in the vicinity of said road [or proposed 
road,] and having met at the time and place appointed* [if meeting is ad- 
journed here state the facts,] and having examined the road [or proposed 
road] in said petition described, and heard such reasons as were offered 
for and against the laying out of said road [or as the case may be], we 
were of the opinion that the laying out of said road [or as the case may be] 
was necessary and proper, and that the public interest would be promoted 
thereby. We, therefore, caused a survey and plat of said road to be made 

on the day of , A. D. 18 — , by A. B., a competent surveyor, 

which plat and survey were to us duly reported, and are hereunto annexed 
and made a part of this order; and having ascertained the aggregate 
amount of damages to which the owners of the land over which said road 
was to pass were entitled, and said damages having been definitely fixed 
by [here state the method by which the damages were ascertained], and 
having made such changes in the route of said road between the termini 
thereof, as in our judgment the convenience and interest of the public re- 
quired, as wiU fully appear from the survey and plat aforesaid, and des- 
cription hereinafter contained, it was finally determined that the said road 
be laid out [or as the case may be]. 

It is, therefore, hereby ordered and determined that the said road be and 
is hereby laid out as follows, to-wit: beginning [here describe the road] 
as shown by the plat hereunto annexed, and as so laid out [or as the case 

may be,] is declared a public highway of feet wide, the line of said 

survey being the center of said road. 

In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , A. D. 18—. 

R. L.,1 Commissioners 
E. S., [ of 

H.P.J Highways. 



DIY. II.] ROADS FOR PRIVATE AND PUBLIC USE. 175 

entering into contract with said commissioners, conditioned upon 
such establishment, alteration, widening or vacating, to pay 
money or any other valuable thing to the town, for the benefit of 
the road and bridge funds of the same, or to perform any labor, 
or to construct any road, bridge or culvert on any road which 
said person or persons desire to have established, widened or 
altered. And such contracts in writing, made with said commis- 
sioners, shall be deemed good and valid in law, and may be en- 
forced by said commissioners or their successors in office, before 
any court having jurisdiction. (1) 

91. Town clerk's record, etc.— Evidence— Effect of same. § 91. 

The record of the town clerk, or a certified copy of such record 
and papers, relating to the establishment, location, alteration, 
widening or vacation of any road, shall be prima facie evidence 
in all cases that all the necessary antecedent provisions had been 
complied with, and that the action of the commissioners of high- 
ways, or other persons and officers in regard thereto, were regu- 
lar in all respects. (2) 

ROADS FOR PRIVATE AND PUBLIC USE. 

Section. 

92. Private roads. 

93. Limitation of time to open. 

94. Crops — Fences. 

95. Payment for work on private roads. 

92. Private Roads.] § 92. Koads for private and public use 

<1) Form of Contract Offering Inducements in Regard to Establishment, 
Alteration, Widening or Vacation of Road. 

It is hereby agreed on the part of A. B., of the town of , county 

of , Illinois, with the commissioners of highways of said town, and 

said A. B. does hereby offer as an inducement, and the same is accepted 
by said commissioners, that in case said commissioners shall [here set forth 
what action is desired on the part of the commissioners'], that then and on 

condition thereof, the said A. B. will pay to said town of for the 

benefit of the road and bridge fund of said town, within [state time'] after 
the date of such action on the part of said commissioners [or as the facts 
may be]. 

In witness whereof, said A. B. has hereunto set his hand and seal, 

this day of 18—. A. B., [seal.] 

[To be signed also by the Commissioners.] 
(2) General Form of Certificate of Town Clerk to Copy of Road Record, 
State of Illinois, ~\ 

County, y ss. 

Town of J 

I, A. B., Town Clerk of said town of , do hereby certify that the 

foregoing [or annexed] is a true and correct copy of the original thereof 
now remaining on file, and of record in my said office. 

In witness whereof, I have hereunto set my hand, this day 

of -, 18—. A. B., Town Clerk. 



176 ROADS AND BRIDGES. [DIY. H, 



of the width of three rods, or less, may be laid out from one dwell- 
ing or plantation of an individual to any public road, or from one- 
public road to another, or from a lot of land to the highways, on 
petition to the commissioners of highways, by any person directly 
interested. The commissioners, on receiving such petition, shall 
have power to lay out the road as asked for therein, to which end 
they shall proceed and examine into the merits of the case, and 
shall be governed in their proceedings by the rules and regulations 
prescribed in this act in relation to public roads. The jury shall 
consider the damages that may result to parties from said pro- 
posed road, and shall assess the damages to each individual owner 
of lands affected thereby. The amount of such damages shall be 
paid by ihe persons benefited thereby, to the extent and in pro- 
portion that they are benefited, to be determined and declared by 
the jury. The remainder of the amount of damages over and 
above that to be paid by the parties as aforesaid, shall be paid by 
the town as in other cases. The amount of damages to be paid by 
individuals, shall be paid to the parties entitled thereto, before the 
road shall be opened for use. An appeal may be taken on the 
question of the propriety and necessity of such roads as in other 
cases.(l) 

(1) Form of Petition for Road for Private and Public Use. 

To the Commissioners of Highways of the town of , in the county 

of , State of Illinois: 

The undersigned person, directly interested therein, does hereby peti- 
tion you to lay out a road for private and public use, of the width of 

rods, [or, feet,] as follows, to-wit: [here state the point of beginning,'] to 
[state the place to which the road is desired to run and terminate'] . The 
names of the owners of lands over which the same is to pass are, A. B., C. 
D. and E. F. Your petitioner prays that you will proceed to lay out said 
road, and cause the same to be opened according to law. 

Dated at , this day of , 18—. L: M. 

The petition for a road for private and public use, and all proceedings by the 

commissioners and others in relation thereto, are required to be substantially the same as pre- 
icribed in relation to public roads. 

The form of proceedings heretofore given relating to public roads may be used ill 
case of private roads, by varying the same to suit the occasion. 

The provision requiring the commissioners to proceed and examine into the 
merits of the case, and that they shall be governed in their proceedings by the rules and regula- 
tions prescribed in relation to public roads, would require them to fix upon a time and place 
when and where they will hear reasons, and to post notices thereof, and the same as to adjourned 
meetings. They should cause a survey to be made, and adjust the damages in the same manner 
as in case of a public road, using the term, " road for private and public use," instead of " public 
highway," or other like term. 

The constitution concerning private roads, Art. 3, § 30, declares that "The General 
Assembly may provide for establishing and opening roads and cartways, connected with a pub- 
lic road, for private and public use." 

The intention of this provision is to place all ways on the footing of public highways. It has 
Deen doubted whether the legislature could authorize the taking of private property for mere 

Private ways, even though provided for by the constitution, because private property could only 
e taken against the consent of the owner for public use. Concord Railroad v. Greeley, 17 N. 
Eamp. R., 47. 

An uninterrupted use and enjoyment of a private way over the land of another 
for twenty years, in the absence of evidence of express grant becomes an adverse enjoyment, suf- 
icient to raise a presumption of a grant. But such use, to be conclusive evidence of a right must 



DIY. H.] ROADS FOE PRIVATE AND TUBLIC USE. 177 

93. Limitation of time to open.] § 93. If such private road 
or cartway shall not be opened by the petitioners or their assigns 
within two years, from the time of making the order for the loca- 
tion of the same, such order shall be regarded as rescinded. 

have been continuous, uninterrupted and exclusive; that is, under a claim of right, with the 
knowledge and acquiescence of the owner. The use of an easement for twenty years unex- 

{)lained, will be presumed to be under a claim or assertion of right, and adverse, and' not by the 
eave or favor of the owner; and such a use will not only give a title by prescription, but will 
authorize the presumption of a grant. When a right to a private way is acquired by prescription, 
or by user of twenty years, it can only be lost by a non-user of twenty years, or by a release. A 
void proceeding for laying out a private road of a void grant, may form the basis of an adverse 
use and enjoyment of an easement in land. The consent of the owner of land to the laying out 
of a private road across his land, may be presumed from his acquiescence and the acquiescence 
of those deriving title from him, in the uninterrupted use of the road as a private road, by others 
for twenty years. Such consent will render the proceedings for laying out the road valid. Miller 
v. Garlock, 8 Barb. R., 153. 

A prescriptive right of way over the land of another cannot be acquired short of 
twenty years' continuous and uninterrupted adverse enjoyment. Where the use has been for 
that length of time, and it has been peaceably, the law presumes a grant. If the use of a right of 
way lacks in time, in peaceable enjoyment, or is founded on a lease, it will not amount to a pre- 
scriptive right, even if more than twenty years have elapsed. Where a person enters as the ten- 
ant of another, he cannot acquire a prescriptive right of way over the lands of his lessor, which . 
he thus holds as tenant. Kuhlman v. Hecht, 77 111. R., 570. 

Open and adverse use for twenty years, although beginning in trespass, will establish 
a right of way. Sibley v. Ellis, 11 Gray R., (Mass.), 417. 

A right of way cannot arise from mere necessity, independent of any right by pre- 
scription. ' Tmcy v. Atherton. 35 Vt. R., (6 Shaw.) 52. But a right of way from necessity may be 
created where the owner sells land which is wholly surrounded by other lands of the grantor. 
In such case, the purchaser will have the right of way over the grantor's land, to and from his 
own. But if a p*arty sells land not entirely surrounded by his own, but only adjoining the same 
the purchaser acquires no right of way, by implication, over the remaining land of the grantor, 
even though it lies between the land bought and the public highway. Kuhlman v. Hecht, 11 ILL 
R., 570. 

A gift of the right of way is not a gift of the earth, and other materials within 
the boundary lines of the way given. Smith v. liowe, 19 Ga. R., 89. 

Supposing the title of a person to a private road by prescription to be otherwise perfect, the 
fact that such road has become less important to him than formerly, will not put an end to his 
right to use it Crounse v. Wemple, 29 N. Y. R. (2 Tiffany), 540. 

A right of way, derived in express terms, is appurtenant to the dominant estate, 
and passes by a conveyance of such estate without express mention of the appurtenances. It is 
a charge upon the servient premises, and continues such when thev are in the hands of any 
subsequent purchaser. Lide v. Hadley, 36 Ala. R., 627; Kuhlman v. Hecht, 11 111. R., 570. 

A way held hy grant or prescription will pass by conveyance of the land with 
which it is used and enjoyed as an appurtenance. But a mere license to use a way, which has 
not ripened into a right, but may be revoked, is not an appurtenance, and will not pass to a 
grantee of the land. Kuhlman v. Hecht, 11 111. R., 570. 

"Where a party obtains a private road of the width of two rods, the owner of 
the land through which it passes must so build his fences as to leave full two rods in width in 
every part of the road; he cannot build a Virginia fence, placing the center on the exterior lines 
of the two rods, with the angesl projecting into the road. A party will be deemed, however, to 
have assented to such location of the fences, if apprised that the damages of the owner of the 
land were assessed in reference to such location, or if he permits the fences to be thus built 
without objection. Herrick v. Stover, 5 Wend. R., 589. Held, also. Id., that where a party obtains 
a right to a private road, he will be entitled to an action against the owner of the land, if he 
places his fence ten or twelve feet on the land acquired for the road, unless he has yielded his 
assent expressly or implicitly to such a location. But it seems that if the plaintiff ha'd assented 
to the location as made, or if he had seen the defendant constructing his fence as it is. and 
knowing that the angles encroached upon the road and was silent, he would not be per mi tted 
to maintain an action for damages. 

An obstruction of private road is a mere private injury, in which the public have 
no concern. Fowlers Lansing, 5 Wend. R., 580. An obstacle placed in a private road by the 
owner of the land over which it is laid out, cannot lawfully be removed by one havin°- no 
right to use the road. Drake v. Rogers, 3 Hill R., 604. But as by the law of this State private 
roads are also for public use, it is a question how far the rule of the foregoing decisions will 
apply to private roads established under our present law. 

"Where it appeared that a road was from two and a half to three rode wide, 
that it terminated at A's house without connecting with any other road, that it had never been 
used by the public, and the record on file with the town clerk described it as a ''{highway for A 
beginning," etc., held, though it also appeared that for many years it had been Jincluded in a 

12 



178 ROADS AND BRIDGES. [DIV. n. 

94. Crops— Fences.] § 94. When such private road or cart- 
way is proposed to pass over inclosed lands, the owners of such 
lands shall have a reasonable time, not exceeding eight months, to 
be designated by the commissioners of highways, to harvest crops 
and remove fences, which may be on such lands before such road 
or cartway shall be opened. 

95. Payment for work on private roads.] § 95. The commis- 
sioners of highways may, in their discretion, pay persons who 
live on or have private roads which are used by the public, for 
work done on such roads ; but in no case shall they be allowed 
more than the amount of their road tax for the year in which the 

work is done. 

* 

TOWN AND COUNTY LINE ROADS. 

Section. 

96. Roads on town and county lines. 

97. Allotment of repairs, etc., division of expenses. 

96. Roads on town and county lines.] § 96. Public roads may 
be established, altered, widened or vacated on township or county 
lines, or from one township in to another, in the same manner as 
other public roads, except that in such case the petition shall be 
presented to the commissioners of highways of each town inter- 
ested, said petition to be as in other cases, and signed by not less 
than twelve freeholders residing in either county, within three 
miles of the road so to be altered, widened, located or laid out ; 
whereupon it shall be the duty of the commissioners of highways 
of the several towns to meet, and act as one body, in the same time 
and manner as in other cases, in considering the petition, viewing 
the premises, adjusting damages, and making all orders in refer- 
ence to such proposed road alteration, widening or vacation, and 
a majority of all such commissioners must concur in all such 
orders; and a copy of all fiual orders and plats and papers shall 
be filed and recorded in each of the counties and towns inter- 
ested.^) 

road district, the evidence did not authorize the court to pronounce it a public highway as a 
matter of law, but the question should at least have been submitted to the jury. It would seem 
that this evidence snowed the road to be a mere private one, intended for the accommodation 
of A. Drake v. Rogers, 3 Hill E„ 604. 

If a private way is opened, leading from a public street, and prepared for use in 
the same manner as a public street, and with nothing to show that it is not such, the public may 
lawfully travel over it, although it is closed at one end. Dan/orth v. DurreU, 8 Allen It. 
(Mass.), 242. 

(1) In order to present the petition to tne commissioners of each town, it would 
seem to follow that there should be two petitions to the same effect; one a duplicate of the 
other. That is, two original petitions, one a copy of the other, signed by the same persons. 
The petition should be addressed to the commissioners of highways of both towns, thus : " To 
the commissioners of highways of the towns of Rome and Troy, in the county of," etc. 

Tne proceedings should conform to those prescribed for establishing roads in 
other cases. 



<DIV. H.] TOWN AND COUNTY LINE ROADS. 179 

97. Allotment of repair, etc.— Division of expense, etc.] § 97. 

The commissioners of highways shall also, in case a new road is 
established, allot to each of such towns the part of such road 
which such town shall open and keep in repair, and the part so 
allotted shall be considered as wholly belonging to such town. 
They shall also divide the expenses and damages which may ac- 
crue from such location, widening or alteration, and if they can- 
not agree, they shall refer the matter to three disinterested free- 
holders as arbitrators, whose decision shall be fmal.(l) 



Meetings of the commissioners, it would seem, may be held in either town, but 
notices should be posted in both towns. 

Tue forms heretofore given for establishing roads may be used in case of town or 
county lines by varying the same to suit the occasion. 

Form of Order of Commissioners of Adjoining Towns in Establishing, 
Altering, Widening or Vacating a road on County or Town 
Lines, <fec. 
State of Illinois, ") 



County 
At a meeting of the commissioners of highways of the towns of 



and , in said county, held in said town of , on the day 

of , A. D. 18 — , for the purpose of laying out a road upon a line be- 
tween said towns lor on the county line, etc., or from one township into 
another, as the case may be'], the same being duly petitioned for; it is 
ordered and determined by the said commissioners that a road be and the 
same is hereby laid out upon the line of said towns [or as the case 6e], 
according to the survey and plat thereof hereunto annexed, which survey 
the said commissioners have caused to be made as follows, to-wit : [insert 
the survey as in other cases'] and that the said line above described be the 
center of said road, and the same is hereby declared to be a public highway, 

feet in width. 

In witness whereof, the said commissioners have hereunto subscribed 

their names, this day of , A. D. 18—. 

A. B., ) Corn's of 
C. D., > Highways of the 
E. F.,) Town of . 



G. H., ) Corn's of 

Highways of the 
Town of . 



G. H., 1 
I. J., \ 
G.M.J 



The location of a highway near to a town line, but wholly within the town, and 
not on the line, nor partly within both towns, is authorized to be done by the commissioners of 
the town in which the road is located. That in such case it does not require the joint action of 
the highway commisssioners of both towns; otherwise, when it is located on the town line, 
partly in each, as then it becomes a road common to both bodies, and under the joint control of 
the two, and it must be located and maintained under the provisions of section 96, 97 of the road 
act. See Mack v. Commissioners of Highways, 41 111. R., 378. 

(1) Where a road is located on the dividing line between townships, the commission- 
ers of the towns must allot the expenses of keeping up the road as nearly equal as possible, each 
road to be attached to the town in which it lies, and a record of the partition and allotment to 
be made in the office of the town clerks of each of the respective towns. Without such allotment, 
the road cannot be opened, neither of the towns having power to act. Keech v. The People, 22 111. 
R., 478; Nies v. Franzen, 18 Wis. R., 537. The road, in such case, should be opened by the commis- 
sioners of the town to which road districts are allotted ; such allotment gives to the commission- 
ers jurisdiction over so much of the road as is contained in the road districts allotted to their 
town. 

The reference to freeholders to determine as to the proper division of expenses and 
damages should properly be reduced to writing by the commissioners in the form of an order, 
and preserved with the other papers in the case. The order may be in the following form: 



180 EOADS AND BRIDGES. [DIV. II. 



ROAD APPEALS. 
Section. 

98. Appeal. 

99. Trial of appeal — Power of supervisors appealed to. 

100. Report of decision — Compensation — Decision final. 

101. Costs of appeal — Bond. 

102. Majority may decide. 

103. Appeal when road is on town or county line. 

104. Town and county line roads— How alloted — What deemed such. 

105. State line roads. 

98. Appeal.] § 98. Any person or persons interested in the 
decision of the commissioners of highways, in determining to or 
in refusing to lay out, alter, widen or vacate any road, or revok- 
ing any previous order or decision relative to any road, or from 
the verdict of any jury in assessing damages in opening, altering 
or vacating any road, may appeal from such decision to three 
supervisors of the county, outside of the town in which such road 
or proposed road is located, by giving a written notice of such 
appeal to said commissioners of highways, and to at least three 
of the petitioners, and also to the same parties a notice when and 
where such appeal will be tried, at least three days before such 
trial, within ten days after such decision has been filed in the of- 
fice of the proper clerk ; and shall also present a written petition 



Form of Order of Commissioners Referring Matter of Expenses and Dam* 

ages to Freeholders. 



County, 



.} 



Town of 

The commissioners of highways of said town of , being unable to 

agree on dividing the amount of expenses and damages between the towns 
of [state the towns], which accrue from the location [widening or altera- 
tion] of a certain road located [describe the location'], do refer the same to 
[state the names], three disinterested freeholders. 

Witness our hands, this day of , A. D. 18 — . 

(Signed by the Commissioners.) 

A copy of the order of reference may be given to the freeholders as notice of their 
appointment. 

Form of Award of Freeholders on Division of Expenses and Damages, 
■ County, ) 

Town of 5 

We, the undersigned freeholders, to whom was referred by the commis- 
sioners of highways of said town of , the matter of dividing the ex- 
penses and damages between the towns of [state the towns], which accrue 
from the location [widening or alteration] of a certain road located [describe 

the road], the total amount of such expenses and damages being $ , do 

determine and award that said amount be divided and paid by said towns 
as follows : [here state the amount apportioned to each town]. 

Witness our hands, this day of , A. D. 18—. 

(Signed by the Freeholders.) 

A freeholder is a person who is the owner of land. 



sdiy. n.] EOAD APPEALS. 181 

to some justice of the peace of the county, asking for an appeal, 
and stating on what grounds such appeal is taken. (1) 

(1) A party who does not own land adjacent to the road is not interested in the de- 
cision of the commissioners so as to give him a right of appeal under the statute. Taylor et air. 
Commissioners of Highways of Normal, Sup. Ct. Hl.,1878. 

If commissioners of highways, in malting an order to lay out a highway have no 
jurisdiction, their proceedings will be void and there will be nothing to appeal from. An appeal 
IB a recognition of jurisdiction. Frizsell et at. v. Rogers, 82 JLLL R., 109. 

Form of Petition for Appeal from Decision of Commissioners. 
State of Illinois, \ 

County. f ss * 

To H. B., a Justice of the Peace in and for said county : 

The undersigned, A. B., C. D. and E. F., persons interested in the decis- 
ion of the commissioners of highways of the town of , in said county, 

in determining [or refusing] to lay out a road [or as the case may be] as fol- 
lows: [describe the road] do hereby appeal to and submit the matter in con- 
troversy to the decision of three supervisors of the county of aforesaid, 

to" be selected by you agreeably to the statute in such cases made and pro- 
vided ; the order of said commissioners embodying said decision was filed 

in the town clerk's office of said town on the ■ day of , A. D. 18 — , 

-a copy of which is hereunto annexed, in and by which the road in ques- 
tion and the proceedings and determination of said commissioners will 
more fully appear. The grounds upon which this appeal is taken are 
[here briefly state the grounds], and said appeal is brought in relation to 
the laying out of said road [or as the case may be], and to reverse entirely 
the decision of said commissioners [or as the case may be]. The under- 
signed being owners of land [or as the case may be] over which said high- 
way is laid out [or as the case may be], therefore asks that you as such jus- 
tice of the peace will proceed, according to law, and select three supervis- 
ors to hear and determine said appeal. 

Dated this day of , A. D. 18—. A. B., 

C. D., 
E. F. 

It will be well to annex a copy of all papers in the case occurring anterior to the 
order of the commissioners of highways, as well as a copy of the order, and have the town clerk 
certify the whole to be correct copies of the original on file in his office. The appeal may be by 
various persons at different times, but they should be heard at the same time. Corley el al. r. 
Kennedy, 28 111. R., 143. 

It has been held in New York, Bushwickv. Messerole, 10 Wend. R., 122, that an appeal, stating 
the proceeding of commissioners in laying out a road to be illegal, is a sufficient compliance with 
the law, requiring the grounds of the appeal to be briefly stated, in the case where exceptions 
were taken to the sufficiency of the petition, on the ground of the qualification of the petitioners 
within the meaning of the law, yet it was thought it would have been well to have specified the 
objection. 

An appeal suspends tlie powers of the commissioners ; and until their acts are af- 
firmed by a decision they cannot open the road. If tney do so, they are trespassers. Clark T. 
Phelps, 4 Cowen R., 190. 

If on an order being made discontinuing a highway, a fence be built across it, an 
^appeal subsequentlv brought will not have the effect of rendering the fence a public nuisfcnce. 
Drake v. Rogers, 3 Hill R., 604. 

After the appeal the supervisors will become actors, and if they do not proceed, it 
cannot be imputed as laches to the party. Clark v. Phelps, 4 Cowen R., 160. 

Form of Notice of Appeal to be given to Commissioners of Highways and 

Petitioners. 

To J. B., D. T., T. J., Commissioners of Highways of the town of , 

in the county of : 

Take notice that on the day of , A. D. 18 — , the undersigned 

presented to L. M., Esq., a justice of the peace of the county of , a 

written petition asking for an appeal from the decision of the commission- 



182 EOADS AND BKIDGES. [DIV. IL. 

99. Trial of appeal— Power of supervisors appealed to. § 99. 

It shall be the duty of the justice of the peace to cause to be 

ers of highways of the town of — , in the said county, made on the — — 

day of , A. D. 18 — , laying out a highway [or as the case may be] as 

follows: [describe the road~], and that said appeal will be tried at on* 

the day of 18—, at the hour of — o'clock, — M. 

Dated this day of — , A. D. 18—. E. M. 

This notice should, be served by delivering a copy to each of the commissioners, or 
by leaving at their dwelling. In the notice to the three petitioners, the address can be thus: 

"To [name the petitioners'] three of the petitioners who petitioned for 
the road herein described." 

The notice should be served upon the three petitioners in like manner as upon 
the commissioners of highways, so that each may have a copy. A true copy should be retained* 
by the person or persons taking the appeal ; and the person serving such notice should make affi- 
davit of the fact to be endorsed upon the back of the copy of the notice retained, which affidavit 
may be in the form following. The supervisors to whom an appeal is taken, cannot act unless 
the commissioners and three of the petitioners are notified, and should they do so, their action 
is invalid. The appeal, however, will not be dismissed on failure to give the notice ; it will 
stand until acted on by the supervisors. McPherson et at. v. Holdridge, 24 111. R., 38. 

Form of Affidavit of Service of Notice of Appeal upon Commissioners of 

Highways. 
State of Illinois, \ CQ 

County / ss - 

E. M., being duly sworn, doth depose and say: That he did, on the 

— — day of , A. D. 18 — , make service of a notice in writing, of which 

the within is a true copy, upon A., B. and C, commissioners of highways 

of the town of , in said county, by delivering one to each of said 

commissioners, [or by leaving at their dwelling houses, as the case may 
be.] 

Subscribed and sworn to before me > E. M. 

this day of , A. D. 18—. 5 

S. V., Justice of the Peace. 

Form of Affidavit of Service of Notice of Appeal upon Three of the Petv» 

tioners. 
Slate of Illinois, \ cc 

County. | ss - 

E. P., being duly sworn, doth depose and say: That he did, on the 

day f f a. I). 18 — , make service of a notice in writing, of which 

the within is a true copy, upon E. B., W. C. and Q. S., being three of the- 
petitioners who petitioned for said road, by delivering one to each of said 
persons, [or by leaving at their dwelling houses, as the case may be.] 

Subscribed and sworn to before me, 1 E. P. 

this day of , A. D. 18—. / 

S. V., Justice of the Peace. 

The law does not provide for notice of an appeal to the owners of land af- 
fecte4 This is a defect in which the courts can afford no relief. It is the duty of such owners 
to take notice of the appeal from the proceedings pending, without special notice, and follow it 
up. Wells et at. ▼. Hicks, 27 111. R., 343. 

The attendance of a majority of the commissioners of highways, it seems, would 
be a waiver of notice as to the commissioners, but the attendance of one only will not have that 
effect. 20 Wend. R., 186. If the commissioners of highways and two of the petitioners appear 
before the supervisors on the day fixed by them, any informality there may be in the notiee is 
waived, and if a postponement is then and there had to a future day, by consent, it is regular. 
Andersouv . Wood et ul„ 8U 111. R., 15. 

Wh^re commissioners of high-ways have acted upon a petition and treated it 
as valid, they cannot afterwards in any proceeding in which they may be concerned, deny its 
sufficiency. See Carmel v. Judges of Putnam Co., 7 Wend. R., 264. 

When the supervisors dismiss an appeal and adjourn without any intention of 
further action, they cannot resume the subject, unless notice of the time and place of a future- 
meeting is served on the commissioners of highways and on the three petitioners before served,, 
and without these the action of the supervisors is void. Keech v. The People, 22 111. R., 478. 



DIV. H.] ROAD APPEALS. 183 

summoned three supervisors of the county to hear such appeal ; 
and said supervisors shall fix upon a time and place when said 
appeal will be heard by them, which place shall be in the town 
where the road is located; and upon such appeal the said super- 
visors shall have the same power and authority that is by this 
act conferred on the commissioners of highways, not only in re- 
gard to the laying out, altering, widening or vacating any road, 
but shall have the same power to cause a jury to be called to 
assess damages, whenever the state of the proceedings require it, 
and the supervisors cannot agree with the owners 01 the land in 
regard to the same.(l) 

100. Report of decision — Compensation — Decision final.] — 

§ 100. And they shall make a report of their proceedings and 
decision in the case, and in like manner, that is by this act, re- 
quired by the* highway commissioners, and shall be entitled to 
the same compensation ; and their decision shall be final in re- 
gard to laying out, altering, widening or vacating such road, or 
in refusing to do the same for one year after such decision. (2) 

(1) Form of Summons to Three Supervisors to Hear Appeal. 

State of Illinois, ) 

County, \ ss * 

The People of the State of Illinois to A. B., supervisor of the town of 
C. D., Supervisor of the town of , and E. F., Supervisor of 



the town of 

You, and each of you, are hereby summoned to meet and hear a certain 
road appeal, taken by G. H., on a petition duly presented to the under- 
signed. 

Given under my hand this day of , 18. 

L. M., 
Justice of the Peace. 

Form of Order of Supervisors Fixing Time and Place to Sear Appeal. 
State of Illinois, \ co 

County, / ss * 

In the matter of road appeal of G. H., on petition to L. M., justice of the 
peace of said county : 

The supervisors, to whom said appeal is taken, have fixed upon the 

day of , A. D. 18—, at the hour of o'clock — M., at [state the 

place,] as the time and place, when and where said appeal will be heard 
by said supervisors. 

Dated this day of , A. D. 18—. A. B., ) 

C. D., ^Supervisors. 
E. F.,J 

(2) Form of Order of Supervisors on Road Appeal— Appeal from Decision 

in Favor of Road. 
State of Illinois, \ CQ 

County, J ss * 

Whereas, on the day of , A. D. 18—, H. H., presented to L. 

M., Esq., a justice of the peace of the county of , a petition asking 

for an appeal from the order and determination of the commissioners of 



184 BO ADS AND BRIDGES. [dIY. IL 

101. Costs of appeal— Bond.] § 101. Any parties taking an 
appeal from the award of the decision of trie highway commission- 
highways of the town of , in said county, in laying out a highway 

, 18 — , and the said justice of the peace having summoned us, the 

undersigned, three supervisors of said county, outside of said town, for the 

hearing of said appeal, and we having met in said town on the day 

of , 18 — , at o'clock, — M., at [state place], to hear the proofs 

and allegations of the parties, being the time and place fixed upon by us, 
when and where we would meet to consider such appeal; and it appearing 
that said commissioners of highways and three of the petitioners in said 
case had been duly notified of the time and place of such hearing as re- 
quired by law, did proceed to hear the proofs and allegations of the parties, 
and to consider said appeal; and we, being fully advised in the premises, 
do -adjudge, order and determine that the order and determination of said 
commissioners of highways be and the same is in all things affirmed [or 
as the case may be~] . « 

In witness whereof, we have hereunto set our hands, this day of 

, A. D. 18—. 

J. S., Supervisor of the town of . 

R. P., Supervisor of the town of . 

H. J., Supervisor of the town of . 

Fees of Supervisors, days each, $ . 

Form of Order of Supervisors on Road Appeal— Appeal from Decision 

Refusing Road. 
State of Illinois, 



te of Illinois, 1 
County, j 



nty.r 88 - 

Whereas, on the day of , A. D. 18 — , J. R. presented to E. 

B., Esq., a justice of the peace of the county of a petition, asking 

for an appeal from the determination of the commissioners of highways 

of said town of in refusing to lay out a highway [or as the case may 

be], which refusal appears endorsed on the petition for said road, returned 

and filed in the office of the county clerk of said county, on the day 

of , 18 — , and the said justice of the peace having summoned us, the 

undersigned, three supervisors of said county, outside of said town, for the 

hearing of said appeal, and we, having met in said town on the 

day of— , 18—, at o'clock, — M., at to hear the proofs and 

allegations of the parties, being the time and place fixed upon by us, when 
and where we would meet to consider such appeal ; and it appearing that 
said commissioners of highways and three of the petitioners in said case 
had been duly notified of the time and place of such hearing, as required by 
law, did proceed to consider said appeal: and having heard the proofs and al- 
legations of the parties, and such reasons as were offered for and against the 
laying out of said road [or as the case may be], we were of the opinion that 
the laying out of said road [or as the case way be], was necessary and 
proper, and that the public interest will be promoted thereby, and that 
the decision of said commissioners should therefore be reversed. 

We, therefore, caused a survey and plat of said road to be made on the 

day of — , 18—, by H. H., a competent surveyor, which plat and 

survey were to us duly reported, and are hereunto annexed and made a 
part of this order; and having ascertained the aggregate amount of dam- 
ages to which the owners of the land over which said road was to pass 
were entitled, and said damages having been definitely fixed by [here 
state the method of ascertaining the damages. If the appeal is from the 
verdict for a jury, and is decided before making this order, state that fact], 
we appointed the day of , 18 — , at o'clock, — M., (being 



DIY. II.] ROAD APPEALS. 185 

ers, or the verdict of the jury, shall pay the cost of such appeal, 
in case the award or the decision of the highway commissioners, 

within thirty days after the total amount of damages was ascertained) at 

[state place of meeting], as the time and place to meet and finally 

determine upon the laying out of said road [or as the cose may be], of 
[or as the case may be], as contained in the order of said commissioners, 

deposited with the town clerk, and riled in his office on the day of 

which meeting we gave public notice by causing three notices to be posted 
in public places in said town not less than five days prior thereto; and 
having met at the time and place appointed, and the aggregate amount of 
damages on account of the laying out of said road [or as the case may be], 

to wit: the sum of dollars and cents, appearing to be not more 

than reasonable compensation, and to have been fairly and legally assess- 
ed, and the payment thereof not an unreasonable burden upon the taxpay- 
ers of the town, and having made such changes in the route of said road 
between the termini thereof, as in our judgment the convenience and 
interest of the public required, as will fully appear from the description 
and plat hereinafter contained, it was finally determined that the said 
road be laid out [or as the case may be]. 

It is, therefore, ordered and determined that the said road be and is here- 
by laid out [or as the case may be], as follows, to wit: beginning [here de- 
scribe road] as shown by the plat hereunto annexed, and as so laid out 

[or as the case may be] is declared a public highway of feet wide, 

the line of said survey being the center of said road. 

In witness whereof, we, the said supervisors, have hereunto set our 

hands, this day of , A. D. 18—. 

T. A., Supervisor of the town of . 

C. S., Supervisor of the town of . 

D. K. Supervisor of the town of . 

The supervisors have the same power and authority oil appeal as commissioners 
of highways including the calling of a jury to assess damages when it shall become necessary. 
The forms heretofore given in proceedings before commissioners of highways may be used in 
case of appeals before supervisors by varying the same to suit the occasion. The changes re- 
quired will be but slight. In all recitals where " commissioners of highways " occurs it may be 

-changed to " three supervisors of the county of , before whom an appeal is pending from 

the commissioners of highways of the town of ." This is the only essential change re- 
quired in the forms heretofor given for commissioners of highways. See ante, p. 156, 173. 

The final order of the supervisors on appeal should be drawn with the same care as 
that by commissioners of highways It should in like manner show either by recitals therein 
or by documents and papers annexed and referred to, a history of the whole proceedings, so as 
to make a perfect record ; the foregoing form is recommended as being the most convenient 
method of the two. It has been held in New York, Harrington v. People, 6 Barb. R., 607, that to 
;give commissioners of highways jurisdiction of proceedings to lay out a highway, an applica- 
tion must be made to them in writing, duly signed as required by law ; and that an order 
directing the laying out of a highway, made on appeal from the decision of such commission- 
ers, must show the making of such application to the commissioners, otherwise the order will 
not be conclusive evidence of the regularity of the proceedings for laying out the road. 

The regularity of proceedings before the commissionei s of highways, such as 
sufficiency of notice, cannot be questioned for the first time, and reviewed before the supervi- 
sors on appeal. Smith v. Alexander, 34 Ind. R., 454 ; Wells et al. v. Hicks, 27 111. R., 343. The only 
questions for the supervisors to decide on an appeal, are, as to the expediency or inexpediency 
of the road, and the amount of damages which the appellant will sustain by its location over 
his land. The question of the jurisdiction of the commissioners could not arise on such a pro- 
ceeding. Commissioners v. Harper, 38 111. R.. 104. It is no part of the duty of the supervisors to 
hear dilatory and technical objections. Beadles v. SmiJi, 15 111. R., 326. 

The supervisors have, no doubt, authority to determine whether the appeal is 

properly before them by being regularly taken ; as that a sufficient bond has been filed, and the 
appeal "taken by persons duly qualified. Town of Winfield v. Moffat U al., 42 111. R., 48. But it 
seem.- they have no authority to entertain an objection to the regularity ot the proceedings 
anterior to the decision of the commissioners; as their decision can only be on the merits as to 
the necessity and propriety ot laying out the road, and if any irregularity has intervened pre- 
vious to the decision of the commissioners, it can only be corrected by certiorari directed to the 



186 ROADS AND BRIDGES. [DIY. H- 

or the verdict of tlie jury, is in all things sustained, and shall file a 
sufficient bond with the justice of the peace or town clerk, before 
taking such appeal, guaranteeing such payment in such case.(l) 

commissioners. Warwick v. Judges of Oswego Co., 13 Wend. R., 433. All objections of a dilatory 
nature should be made before the commissioners of highways, and should they err in their pro- 
ceedings, the remedy by certiorari, and not an appeal, is the proper course, and which it seems 
will be awarded in such cases. See People v. Wilkinson, 13 111. R., 660. 

Upon an appeal to supervisors from the decision of the commissioners of high- 
ways, as to the laying out of a road, it is not necessary that the supervisors should examine the 
entire road. It will be sufficient if they examine that portion of the road against which the 
objections are urged. Commissioners, etc., of Sonora v. Supervisors of Carthage, etc., et al., 27 I1L 
R., 411. 

On an appeal from the doings of the commissioners in laying out a road, an inquiry into the- 
damages of the owners of lands, it seems, will be proper to enable the supervisor to determine 
whether the benefit will equal the expense, and whether the public good will be promoted by 
the road. Bushwick v. Messerole, 10 Wend. R., 122. 

It seems that supervisors on hearing appeals from commissioners of highways, 
decide the appeal, not on the facts existing at the time of the original application to the com- 
missioners, but on the fact existing at the time of the hearing before them. In this respect, the- 
hearing before them is in the nature of a new proceeding. See People v. Goodwin, 4 Seld. 
R., 573. 

After the supervisors have determined a case submitted on appeal, it becomes an 
act done, and their power over the subject is exhausted. They cannot resume it and change 
the result. People v. Ferris, 41 Barb. R., 121. 

But where supervisors have committed errors in their order, reversing the order 
of the commissioners and determining to lay out a road they have a right, it seems, after filing 
their order, to deposit in the town clerk's office a document correcting the errors, which will be 
deemed a valid amendment. The reversal of the commissioners order and determination to- 
lay out the road, were quasi judicial acts, and could not be reversed or altered by the supervi- 
sors; but making up the record of their proceedings was ministerial, and should they refuse to- 
make such correction, it seems a mandamus will be avoided, requiring them to do so. Hallock v. 
Woolsey, 23 Wend. R., 328. 

"Where the commissioners of highways refuse to open a road laid out by the 
supervisors, on appeal, a mandamus lies to compel them to do so; which writ need not in the 
first instance be directed to the commissioners by their individual names. It is only in case of 
disobedience to the writ that they are to be proceeded against personally. Peopte v. Champion, 
16 Johns. R., 61. 

It has been held in New York, 7"Wend. R., 264, that a general appeal from the determination 
of commissioners refusing to lay out a road, is a sufficient compliance with the requirements of 
the statute. 

Where proceedings have "been taken by highway commissioners in laying out a 
highway, and confirmed on appeal, Held, that a writ of certiorari should be directed to the 
board of appeal, and not to the commissioners, and where directed to the latter, it was quashed. 
French v. Commissioners, 12 Mich. K., 267. 

(1) Form of Appeal Bond when Appeal is from Decision of Commissioners. 

Know all men by these presents, that we, H. H. and A. T., of the town 

of , in the county of , and state of Illinois, are held and; 

firmly bound unto E. B., supervisor of the town of , in said county, 

and to his successors in office, in the penal sum of dollars, for the 

payment of which well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, jointly, severally and firmly by these 
presents. 

Signed with our hands and sealed with our seals, this day of , 

A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden H. H. has appealed from the decision of the commissioners of" 

highways of the said town of , in laying out a highway [or as the 

case may be~\ from [here describe the road], by their order bearing date 
the day of , 18—. 

Now, therefore, if the above bounden H. H. shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the determina- 
tion of the commissioners of highways in the premises shall be in all 



DIV. H.] EOAD APPEALS. 187 

102. Majority may decide.] § 102. The decision of a majority 
of the supervisors in any appeal case shall be taken as the decis- 
ion of said supervisors. 

103. Appeal when road is on town or county line. ] § 103. When 
the commissioners of highways of one town disagree with the com- 
missioners of highways of an adjoining town, in regard to the lay- 
ing out of a new road, or the alteration, widening or vacation of an 
old road, on any county or town line, appeals may be taken from 
such decision in the same manner as set forth in section 98, of 
this act : Provided, that when such decision is in regard to a road 
on a county line, two supervisors and one commissioner of high- 
ways shall be selected from one county, and two commissioners 
of highways and one supervisor shall be selected from the other. 
The county from which the two supervisors shall be selected, 



things sustained, then the above obligation to be void, otherwise to re- 
main in full force and virtue. 

H. H. [SEAL.] 
A. T. [SEAL.] 

Approved by me, this day of , A. D. 18 — . 

L. M., Justice of the Peace. 

Form of Appeal Bond when Appeal is by person Interested in Verdict of 
Assessing Damages. 

Know all men by these presents, that we, S. P. and A. H., of the town 

of , in the county of , and state of Illinois, are held and 

firmly bound unto J. S., supervisor of the town of , in said county, 

and to his successors in office, in the penal sum of dollars, for the 

payment of which well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, jointly, severally and firmly by these 
presents. 

Signed with our hands and sealed with our seals, this day of , 

A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden S. P., a person interested in the verdict of the jury who assessed 
damages in the matter of the laying out of the road [or as the case muy be] 
from [here describe the road] has appealed from the decision of the com- 
missioners of highways in said matter. 

Now, therefore, if the above bounden S. P., shall promptly pay, or cause 
to be paid, all costs arising from said appeal, in case the said verdict of the 
jury in the premises shall be in all things sustained, then the above obli- 
gation to be void, otherwise to remain in full force and virtue. 

S. P. [SEAL.] 
A. H. [SEAL.] 

Approved by me, this day , A. D. 18 — . 

L. M., Justice of the Peace. 

It the bond on appeal is deemed insufficient in not reciting the case in question cor- 
rectly or in the manner of its execution, the objection should be made before the supervisors. 
If adjudged insufficient, it is but reasonable that the party should be permitted to cure the- 
defect by filing a new bond. Where two names are affixed to a bond, being the same persons 
who take the appeal, and no other names appear as sureties, for the purposes of the case, one 
may be regarded as surety for the other. Even if this were not so, the objection comes too later- 
on certiorari. Town of Winfield v. Moffat, 42 111. K,., 47. 



188 EOADS AND BRIDGES. [DIV. H. 

shall be determined by the party or parties taking the appeal, and 
the justice of the peace shall issue his summons accordingly.(l) 

104. Town and county line roads— How allotted— What 
deemed such.] § 104 All roads heretofore laid out upon town 
or county lines shall be divided, allotted and kept in repair in 
the manner as hereinbefore directed. Any public road that is 



(1) The above section provides for an appeal in case of a road on a county or town 
line, when the commissioners of highways of one town disagree with the commissioners of an 
adjoining town, the manner of taking the appeal is as prescribed in section 98, ante, p.180 , except 
as contained in the proviso of § 103. The petition in such case, it would seem, may be presented 
to any justice of the peace of the county. If the road is on a county line it would seem proper 
that the petition should be presented to any justice of the county in which the person taking 
the appeal resides, on the line of which the road in question runs or is proposed to be located. 

Where the commissioners of highways disagree as to a road or proposed road on 
a town or county line, it is proper that they should make a statement or certificate of the fact 
in writing in duplicate, and deposit one with the town clerk of each town, which may be in th* 
following form: 

Form, of Certificate of Commissioners of Highways of Disagreement as <** 

Road on Town Line. 
State of Illinois, \ 

County, / ss - 

This is to certify that we, the commissioners of highways of the towns 
of Rome and Troy, in said county, having received a petition to establish 
[or as the case may be,] a road on the line of said towns, described as fol- 
lows: [describe the road as in the petition], and having duly considered 
the same, the commissioners of said town of Rome have disagreed with 
the commissioners of said town of Troy in regard to the laying out of the 
same [or as the case may be]. 

Witness our hands, this day of , 18—. 



£"• 5" 1 Com'rs of Highways 
E. F.J 



of Rome. 



P.* R.J of Troy 

Form of Petition for Appeal in Case of Town Line 



L M l Com ' rs ofJHighways 

.'k.7j 



State of Illinois, \ 

County, / ss - 

To H. B., a justice of the peace of said county of : 

The undersigned A. B., C. D. and E. F., persons interested in the estab- 
lishment of a road on a town line of the towns of and , in said 

county [or as the case may be], wherein the commissioners of highways 
of said towns have disagreed, a copy of their certificate in regard thereto 
being hereunto annexed and made part hereof, said road [or proposed 
road] being described as follows : [here set forth a brief description of the 
road as in the petition to the commissioners], do hereby appeal to and sub- 
mit the matter in controversy to the decision of three supervisors of said 

county of , to be selected by you agreeably to the statute in such cases 

made and provided. 

Dated this day of , 18—. 

(Signed by the Petitioners.) 

The forms given in case of appeals in other cases may be used in appeals in case of 
town lines by slight changes to suit the occasion. Instead of the words " decision " or " deter- 
mination of the commissioners of highways," the following expression may be used, " the disa- 
greement of the commissioners of highways of the town of Rome with the commissioners of 
Mghways of the town of Troy." 



DIV. H.] BKIDGES. 189 1 

or shall hereafter be laid out on a town or county line, shall be 
held to be a road on a county or town line, although, owing to 
the topography of the ground along said county or town line, or 
at the crossing of any stream of water, the proper authorities, in 
establishing or locating such road, may have located a portion 
of the same to one side of such county or town line. 

105. State line roads.] § 105. Koads may be laid out and 
opened apon the line between this and any adjoining state, as 
provide t in the preceding sections, whenever the laws of such 
adjoini' g state shall be applicable. 

BKIDGES. 
Section. 

106. Town and county line bridges. 

107. Contracts in reference to such bridges. 

108. Enforcemeut of contracts. 

109. Effect of judgment on such contract. 

110. County aid to build bridges. 

111. Vote to borrow money to build bridge. 

106. Town and county line bridges.] § 106. Bridges over 
streams which divide towns or counties, and bridges over streams 
on roads on county or town lines, shall be built and repaired at 
the equal expense of such towns or counties : Provided, that for 
the building and maintaining of bridges over streams near county 
or town lines, in which both are equally interested, the expense 
of building and maintaining any such bridges shall be borne 
equally by both counties or towns. (1) 

107. Contracts in reference to such bridges.] § 107. For the 
purpose of building or keeping in repair such bridge or bridges, it 
shall be lawful for the commissioners of highways of such adjoin- 
ing towns or counties to enter into joint contracts, and such con- 
tracts may be enforced, in law or equity, against such commis- 
sioners jointly, the same as if entered into by individuals, and 
such commissioners may be proceeded against, jointly, by any par- 
ties interested in such bridge or bridges, for any neglect of duty 
in reference to such bridge or bridges, or for any damages grow- 
ing out of such neglect. (2) 

(1) To compel an adjoining town to contribute to making or maintaining a 

bridge over a stream dividing the towns, a legal liability to such contribution must be shown; 
Mere use alone is not sufficient, where a bridge has been opened by private enterprise. Town of 
Rutland v. Town of Dayton. 60 111. R., 58. 

"Wliere a bridge over a stream dividing two towns is recognized, and accepted as 
a public bridge by the proper officers of each town, each will be liable to one half of the ex- 
penses of keeping the same in repair, and the liability may be enforced by suit at law. Corrirs 
of Dayton v. Com'rs of Rutland, 84. 111. R., 2?9. 

(2) Form of Contract between Commissioners of Highways of Adjoining 
Towns for Building Bridge. 

This contract, made and entered into this day of , A. D. 

18—, by and between A. B., C. D., and E. F., commissioners of highways 
of the town of , in the county of , and State of Illinois, of the 



190 ROADS AND BRIDGES. [DIY. H. 

108. Enforcement of contracts.] § 108. If the commissioners 
of highways of either of such towns, after reasonable notice, in 
writing, from the commissioners of highways of any other such 
towns, shall neglect or refuse to build or repair any such 
bridge, when any contract or agreement has been made in regard 
to the same, it shall be lawful for the commissioners so giving 
notice to build or repair the same, and to recover, by suit, one- 
half (or such amount as shall have been agreed upon) of the ex- 
pense of so building or repairing such bridge, with costs of suit 
and interest from the time of the completion thereof, from the 
commissioners so neglecting or refusing. (1) 

one part, and G. H., I. J., and K. L., commissioners of highways of the 

town of , in said county, being adjoining towns, witnesseth, that said 

towns having become liable to make a bridge across river, a stream 

dividing such towns, said commissioners, in consideration of the premises 
and of the agreement hereinafter set forth, to be kept and performed by 
the respective parties, do contract and agree, that said bridge shall be built 

over said river where the road leading from to , crosses the 

same, on the line of the center of said road ; that said bridge shall be of the 
following plan and materials, to wit: [Set forth briefly the plan and mater- 
ials, where such is made part of the contract, or plans may be annexed and 
referred to]. That the building of said bridge shall be let by contract 

within months from the date hereof, to the lowest bidder, who 

shall be required to complete the same within months from the date 

of accepting his bid. That the letting of said contract, the prosecution of 
the work, and acceptance thereof, shall be under the joint supervision and 
direction of said parties hereto, and their successors in office, and that the 
commissioners of each town will promptly furnish and pay over the due 
proportion of money that their said town may be liable for in building 
said bridge, as the payments shall become due upon the contract for build- 
ing thereof. 

In witness whereof, the said parties have hereunto* set their hands and 
seals, the day and year first above written. . -o 

In presence of \ C D ' 

* E*. F.] 

Commissioners of Highways of the Town of 

G.H., " 
I. J., 
K. L., _ 
Commissioners of Highways of the Town of • 



SEAL. 
SEAL. 
SEAL. 



SEAL. 
SEAL. 
SEAL. 



The foregoing form can be varied or enlarged, to suit the circumstances of particu- 
lar cases: 

(1) Form of Notice to Commissioners of Highways of Adjoining Towns to 
Join in Performing Contract for Building Bridge. 

To A. B., C. D., and E. F., Commissioners of Highways of the town of 
, county of : 

You are hereby notified to fulfill, on your part, the contract entered into 
by you [or by your board], with the undersigned commissioners of high- 
ways of the town of , in said county, [or with the commissioners of 

highways of the town of , in said county], the day of , A. D. 

18 — , for building a bridge over river, at the point where the road 

leading from to crosses said river, by [here set forth the perform- 
ance required as stipulated in the contract], and that unless you shall so per- 



DIY. n.] BEEDGES. 191 

109. Effect of judgment on such contract] § 109. Any judg- 
ment so recovered against the commissioners of highways of either 
of such towns, shall be a charge on such town, unless the court 
shall certify that the neglect of (or) refusal of such commissioners 
was wilful or malicious, in which case only such commissioners 
shall be personally liable for such judgment, and the same may be 
enforced against them in their personal and individual capacity. 

110. County aid to build bridge.] § 110. When it shall be 
necessary to construct or repair any bridge in any town, or to build 
a bridge over any stream between towns, or over streams or roads 
between towns in the same county, which would be an unreason- 
able burden to the same, the cost of which will be more than can 
be raised in one year by ordinary taxes for bridge purposes in 
such town, or one of such towns, the commissioners of highways 
•of either town desiring to build such bridge shall present a peti- 
tion to the county board of the county in which such town or 
towns is situated, praying for an appropriation from the county 
treasury to aid in the building, constructing and repairing of such 
bridge, and such county board shall, when one half the necessary 
funds have been provided for by the town authorities of either or 
both such town or towns, appropriate the other half : Provided, 
that all unexpended surplus of any appropriation that may be 
granted by the county under the provisions of this section shall 
be paid back into the county treasury. And all funds provided to 
be raised under this section shall be expended by and under the 
joint control of the commissioners of highways of the town asking 
such aid, and to persons apppointed by the county board of the 
county granting the same.(l) 

form on your part within days from this date, the undersigned, said 

commissioners of highways, will proceed, as empowered by law, and com- 
plete said bridge, and will claim of you the due proportion of expense 
thereof, chargable to your town. 

Dated at , this day of , A. D. 18—. 

E. F., ) Commissioners 
G. H., \ of 

I. J., J Highways. 

(1) Form of Petition to County Board for an Appropriation to Aid in 
Building or Repairing a Bridge or Road. 

To the County Board of the county of , in the State of Illinois: 

The undersigned commissioners of highways of the town of , 

in said county, would respectfully represent that a bridge needs to be 

built [or repaired] over the river, where the same is intersected by 

the highway leading from to , in said town ; that the total cost of 

building said bridge [or as the case may 6e], will be dollars, which 

would be an unreasonable burden to said town, and more than can be 
raised in one year by ordinary road taxes therein; the amount raised by 

said taxes being only dollars ; wherefore, the said commissioners of 

highways hereby petition you for an appropriation of dollars from the 



192 KOADS AND BRIDGES. [DIV. TL 

111. Tote to borrow money to build bridge.] §111. When it 
shall be necessary to build a bridge in any town which would require 
a larger sum of money to complete than is authorized to be raised 
by taxation under the constitution upon a single years assess- 
ment, the commissioners of highways shall petition the supervisor 
of the town to call a special town meeting to vote on the proposi- 
tion "to borrow money to build a bridge," which said petition 
shall be signed by said commissioners in their official capacity,, 
and by at least twenty-five freeholders of such town, and there- 
upon such petitton shall be filed in the office of the town clerk of 
such town. Upon the filing of said petition, the supervisor shall 
order the town clerk, by an instrument in writing, to be signed by 
him, to post up in four of the most public places in said town, 
notices of such special town meeting; which notice shall state the 
object, time and place of meeting, and the manner in which the 
voting is to be had, which shall be invariably by ballot, and shall be 
"to borrow money to build a bridge," when the voter desires to 
vote in favor of that proposition, and "against the proposi- 
tion to borrow money to build a bridge," when the voter desires 
to vote against said proposition. The special town meeting shall 
be held and returns thereof made in the same manner as other 
special town meetings are now or may hereafter be provided by 
law; and if it shall appear that a majority of the legal voters 
voting at said election shall be in favor of said proposition, the 
supervisor and town clerk, acting under the direction of the com- 
missioners of highways of said town, shall issue from time to time^ 
as the work progresses, a sufficient amount in the aggregate of the 
bonds of said town for the purpose of building such bridge ; said 
bonds to be of such denominations, bear such rate of interest, not 
exceeding eight per cent, upon such time, and be disposed of a& 
the necessities and conveniences of said town officers require : Pro- 
vided, that said bonds shall not be sold or disposed of for less than 
their par value, and such town shall provide for the payment of 
such bonds and the interest thereon by appropriate taxation.(l) 

county treasury of said county, to aid in building said bridge [or as the 

case may be]. 

Dated at -, this — - day of , A. D. 18 — . 

R. P., 1 Commissioners 
J. K., [ of 

L. M., J Highways. 

The foregoing form can be changed to suit the case of a road, instead of a bridge* 

(1) Form of Petition to Supervisor for Special Town Meeting to Vote on 
Question to Borrow Money to Build Bridge. 

To A. B., supervisor of the town of , in the county of , and 

State of Illinois: 
The undersigned, commissioners of highways and twenty-five freehold- 
ers of said town, would respectfully represent that a bridge is necessary to 



DIV. II.] MISCELLANEOUS PRO v SIONS. 193 



MISCELLANEOUS PROVISIONS. 
Section. 

112. Re-survey and plat of roads. 

113. New road not to vacate old road, unless, etc 

114. Contracts for bridges. 

115. Orders received for tax. 

116. Removal of fences. 

117. Compensation of commissioners. 

118. Road to be opened in five years. 

119. Tax to be collected in money. 

120. How tax extended and collected. 

121. Certificate of tax levied. 

122. Tax paid to treasurer of commissioners. 

123. List of tax-payers to be furnished clerk. 

124. Repeal. 

112. Re-suryey and plat of roads.] §112. Upon the petition 
of twelve legal voters, it shall be the duty of the commissioners of 
highways of each town, within a reasonable time, to employ a 

be built over the river where the same is intersected by the highway 

leading from to , in said town ; that the total cost of building said 

bridge will be dollars, which would be a larger sum than is authorized 

lo be raised by taxation upon a single year's assessment, and that it will 
De necessary to borrow money to build said bridge ; wherefore the under- 
Bigned hereby petition you to call a special town meeting to vote on the 
proposition "to borrow money to build a bridge," as above set forth. 

Dated at , this day of , A. D. 18—. 

A. B., ) Commissioners 
C. D., [ of 

EF.J Highways. 
To be signed by twenty-five freeholders. 
For form of notice of special town meeting, see Township Org'n Act, Art. VI, § 8. 

Form of Instrument by Supervisor Ordering Town Clerk to Post Notice* 
of Special Town Meeting. 

County, 1 

Town of ,/ ss * 

The commissioners of highways of said town of , having duly pe- 
titioned the supervisor of said town, to call a special town meeting to vote 
on the proposition to borrow money to build a bridge as set forth in said 
petition, and which petition was filed in the office of the town clerk the 

—day of , 18—, it is therefore ordered by said supervisor that the town 

clerk post up in four of the most public places in said town; notices of 
such special town meeting, acording to the law in such cases. 

Witness my hand, this day of , A. D. 18 — . 

A. B., Supervisor. 

The commissioners of highways in discharging their duties, are required care- 
fully to estimate the sum necessary to be expended in their township for making and repairing 
bridges, etc., for the ensuing year, see post, § 119, and to levy the same, if it does not exceed forty 
cents on the $100 worth of taxable property, and return the same to the county clerk on or before 
the Tuesday next preceding the annual meeting of the board of supervisors in September. If 
the levy of forty cents is not sufficient, they must call upon the people to vote an additional 
amount, or for power to borrow money. Commissioners of Highways, etc. v. Newell et al., 80 I1L 
R., 581. The electors at town meeting are authorized to direct the raising of money by taxation, 
for makingand repairing roads and bridges. See Township Org'n Act, Art. IV, § 3. 

Where a special town meeting has been called to vote upon the question as to 
whether the town would borrow money to build a bridge, and the question was lost, there being 

13 



194 ROADS AND BRIDGES. [DIY. II. 

competent surveyor, and have any road or roads designated in 
such petition in their several towns re-surveyed, and plats thereof 
made, which plats and surveys shall be by them filed for record in 
the ofnce of the town clerk : Provided, that this section shall not 
apply where the same has been already done, unless the exact 
location of such road is uncertain. (1) 

113. New road not to vacate old roaJ, unless, etc.] § 113. The 

establishment of a new road on the route of a road already estab- 
lished according to law, shall not vacate the road previously estab- 
lished unless such vacation is prayed for in the petition, and so 
declared in the order establishing the new road. 

114. Contracts for bridges.] § 114. The commissioners of 
highways of the several towns are hereby authorized to contract 
for the building and repairing of bridges in their respective towns, 
and they may let such contracts by a public letting to the lowest 
responsible bidder, upon proper notice being given by posting 
copies of such notice in at least three public places in their town, 
not less than ten days before the time of such public letting ; or 
if they deem it to be to the interest of their town, they may, to an 
amount not exceeding twenty-five dollars ($25), privately contract 
with persons, as they shall deem best, for putting bridges in 
good repair ; but in no case shall such contracts exonerate such 
commissioners from liability for failure to keep such bridges in 
repair. (2) 

a tie vote; a second special town meeting can be lawfully called, and held under that section. 
Nothing is found in the statute which forbids it. The power is not exhausted by having once 
been acted upon. It is a continuous one and may be exercised from time to time as circum- 
stances may require. Opinion Attorney General Edsall, Sept. 22, 1877. 

The decision of tlie hoard of commissioners of a county, as to whether public 
convenience demands the erection of a bridge over a stream, in such county, is final, and cannot 
be appealed from. Bingham v. Commissioners of Marion Co., 55 Ind. R., 113. 

(1) Form of Petition of Twelve Legal Voters for Re-survey of Road. 

To the commissioners of highways of the town of , county of , 

state of Illinois : 
We, the undersigned legal voters of said town, do petition that within 
a reasonable time a competent surveyor be employed, and that the follow- 
ing road be re-surveyed, and a plat thereof made and filed for record in 
the town clerk's ofnce, according to the statute in such cases, to-wit : [here 
describe the road, or roads.] 

Dated this day of , A. D., 18—. 

[To be signed by twelve legal voters.] 

(2) Form of Notice of Public [Letting of Contract for Bnilding or Repair 

of Bridge. 

HIGHWAY NOTICE— PUBLIC LETTING OF CONTRACT. 

Notice is hereby given that proposals will be received by the under- 
signed commissioners of highways of the town of , county of , 

state of Illinois, on the day of , 18—, for building [or repair- 
ing] a bridge, at [state the place of location with reasonable certainty ,~] that 
the same will be let by contract by public letting, to the lowest responsi- 



MY. II.] MISCELLANEOUS PROVISIONS. 195 

115. Orders received for tax.] § 115. Provided, that tlie col- 
lector of taxes shall receive from any tax payer, in payment of 
said tax payers road and bridge tax, any order of the commis- 
sioners ot highways, on their treasurer, for work done on or 
material furnished for the construction or repairs of the high- 
ways or bridges, in any sum not to exceed the amount of such 
person's road and bridge tax then due. 

116. Removal of fences.] § 116. Whenever a public road is 
•ordered to be established or altered, according to the provisions 
of this act, which road shall pass through or on enclosed land, 
the commissioners of highways shall give the owner or occupant 
of such land sixty days notice in writing to remove his fences. 
If such owner or occupant does not remove his fence within 
sixty days after such notice, the commissioners shall cause the 
same to be removed, and direct the road to be opened and 

ble bidder, at the hour of o'clock — M., at [state the place of letting]. 

The amount and kind of work to be done is as follows : [state the same.] 

The work to be completed by the day of , A. D. 18—. 

Dated at , this day of , A. D. 18—. 

N. P., ) Commissioners 

W. C, [ of 

J. W., ) Highways. 

Form of Contract for Building a Bridge. 

This contract, made and entered into this day of , A. D. 18 — . 

between A. B., C. D., and E. F., commissioners of highways of the town 

of , in the county of . and state of Illinois, on the one part, 

and G. H., of , of the other part, witnesseth : 

That the said G. H., for the consideration hereinafter mentioned, does, 
for himself, his executors and administrators, promise and agree to and 
with the said commissioners of highways and their successors in office, 

that he, the said G. H., shall and will within the space of next 

after the date hereof, furnish all materials for the bridge hereinafter 
mentioned, and in a good, substantial and workmanlike manner, erect, 
build, finish and complete to the satisfaction of the said commissioners 

of highways, their successors in office, a bridge over the river on 

the highway leading from to , in said town, according to the 

following [or annexed] plans and specifications [giving same]. 

In consideration whereof the said commissioners of highways, in behalf 
of said town, promise and agree to and with the said G. H., his executors, 
administrators and assigns, that the said town shall and will well and truly, 
pay, or cause to be paid, unto the said G. H., or his assigns, the sum 

•of dollars as soon as the said work is accepted by a majority of said 

•commissioners. 

In witness whereof, we have hereunto set our hands, this day 

of , A. D. 18— . 

A. B.,*) Commissioners 
C. D., \ of 

E. F.,J Highways. 
G.H, 

If sureties for the performance of the contract are desired, it is proper that 
tney should join in the execution of the contract. 



196 BO ADS AND BBDDGES. [DIV. II- 

worked ; and such owner shall forfeit to such commissioners the 
sum of one dollar for every day he shall permit his fence to re- 
main after the expiration of said sixty days, and shall pay all 
necessary cost of removal, to be collected by said commissioners 
before any justice of the peace having jurisdictional) 

(1) Form of Notice for Removal of Fences. 
To Mr. J. S. : 

You will take notice that the commissioners of highways of the town 
of , in the county of , have laid out a public highway, agreea- 
ble to an order of said commissioners, bearing date the day of , 

A. D. 18 — , a copy of which is hereunto annexed ; which highway passes 
through certain inclosed lands owned [or occupied] by you. [It will be 
well here to describe the premises with reasonable certainty. ,] You are 
therefore, hereby notified and required to remove your fences from within 
the bounds of said highway, within sixty days after the service of this 
notice. 

A. B.,) Commissioners 
C. D., \ of 

E. F.,J Highways. 
Dated at , this day of , A. D. 18—. 

In the removal of fences in case of improved lands, the intention of the law is to 

give time for removal and rebuilding thereof. Where the land is unenclosed or fences are vol- 
untarily removed, this portion of the law does not apply. Where fences are voluntarily re- 
moved, and a subsequent owner of the land replaces them and again obstructs the road, he is 
not entitled to the benefits of the law, or notice to remove such fences. The law does not re- 
quire an order to open the road, except in case of enclosed land and where there is a refusal to 
remove fences. See Hunter v. Jones, 13 Minn. R. It seems that a road passing through unim- 
proved and uninclosed lands, is considered in contemplation of law, opened when established. 
Ferris v. Ward, 4 Gilm. R., 499. 

"Where a road, after its survey and location, has not been opened for the use of 
the public, nor the proper notice given to the owner or occupant of the land to remove his 
fences, neither the commissioners nor any other person can remove a fence without becoming 
trespassers. Taylor v. Marcey, 25 111. R., 518. If the fences are removed without giving sixty 
days notice, as required by the statute, all persons concerned therein are trespassers. Kelley v. 
Eorton, 2 Cowen R., 424. 

The order of highway commissioners is no justification in trespass for opening 
the plaintiff's fence so as to let cattle into his corn, where it is not shown that there was a high- 
way legally established at the place. Cadwell v. Evans et al., 85 111. R.. 170. 

An overseer of highways tn proceeding to open a road by removal of fences, can- 
not justify in an action of trespass, by showing merely an order from the commissioners of 
highways, directing him to open the road; if the legality of the road is questioned, he must 
show also that it was in all respects legally laid out and established. The commissioners, and 
all persons acting under them, must show that a case existed which justified the order by them. 
Qwptail v. Teft, 16 111. R., 365; Dunning-v. Mathews, Id., 308. But where a road is ordered to be 
opened, and the owner of the land over which it passes receives the money awarded to him as 
damages, he is estopped from alleging that the proceedings were void. Kile v. Town of Yellow- 
head, 80 111. R., 208. 

The act of a party in recognizing a highway by repairing a fence on the side thereof, 
does not estop him from afterwards denying that it is a legal highway. Com'rs of Highways v. 
Swan, 65 Barb. R. 210. 

The commissioners can he made to respond in damages if they are misled as to the 
correct line of the road, and in attempting to open it, commit a trespass thereby. Bayer v. 
Tanner, 29 111. R., 135. A party pulling down a fence in such case, the burden is upon him to 
show that it was upon the location of the highway as established. Weed v. Sibley, 40 Maine 
R., 356. 

A copy of the field notes of a survey of a public highway made by a county sur- 
veyor, but not under competent authority, and filed with a town clerk, the copy of which is 
made and certified by him. is not evidence to establish the location of a public road. Nor are 
such notes of a survey made by the same person after he has ceased to be the county surveyor. 
Gray et al. v. Waterman, 40 111. R.. 522. 

Should commissioners of highways proceed in obedience to the mandate of a 
court, to open a road after it had been discontinued, they would be trespassers. Where a per- 
emptory writ of mandamus was awaided against commissioners of highways, requiring them to 



DIV. II. 1 MISCELLANEOUS PROVISIONS. 197 



117. Compensation of Commissioners.] § 117. The commis- 
sioners of highways shall receive for their services the sum oi 

open a certain road, it was held to be a sufficient excuse, on the part of the commissioners, foi 
not obeying the writ, that after the writ was awarded, and before it was issued and served, the 
road in question had been duly vacated. Commissioners of Swan Township v. People ex rel. Wal- 
<ien,311\LB..,97. 

Where a fence was removed from what was supposed to toe a public highway, 
tinder direction of a resolution adopted at a town meeting, evidence of such resolution is not 
admissible as a bar to the action, nor in mitigation of the actual damages sustained, for towns 
have no such power, but such evidence is proper as tending to repel malice, and thus to miti- 
gate punitive damages. Gray et al. v. Waterman, 40 111. R., 522. 

In an action of trespass for removing a fence, the plaintiff, if he recover, may have 
"the damage growing out of its removal, and also for the loss of crops growing at the time, which 
resulted from the perpetration of the unlawful act. In such a case the wrong-doer is responsi- 
ble for all the consequences directly resulting from the unlawful act. Gray et al. v. Waterman, 
40 111. R, 522. The same rule in Buckmaster v. Cool, 12 111. R. , 74. 

"Where commissioners of highways had laid out a road in pursuance of law, but 
neglected to file their proceeding, and a mandamus directed to their successors, commanding 
them to open it, by mistake mis<i escribed the road, on application for a rule requiring the de- 
fendants to furnish the original application, and that the mandamus be amended thereby, it 
appeared that the paper sought for had remained in the hands of H., a former commissioner, 
and was beyond the control of defendants. Motion, therefore, denied as to the defendants. 
But a rule was made upon H. that he file the paper with the clerk of the town, etc., or show 
just cause why he should not do so. People v. Vail. 1 Cowen R., 589. 

A mandamus to commisssioners of highways to open and work a road will be granted with- 
out regard to ihe near approach of the expiration of their offices ; when the term of the office 
expires, their successors must obey the command of the writ. People v. Collins, 19 Wend. R., 56. 
But a mandamus is not a proper remedy to try the question of the location of a public highway, 
as between the public and the landholders over whose land it passes. The court has a discre- 
tion in granting or refusing the writ. People exrel. Morgan v. Cvryea et al., 16 111. R., 547. 

Where a road is used and travelled by the public as a highway, and is recognized and kept In 
repair as such, by the authority whose duty it is by law to open and repair public roads, proof 
of these facts furnishes a legal presumption, liable to be rebutted, that such road is a public 
.highway. Eyman v. People, 1 Gilm. R., 4; Nealy v. Brown, Id., 10. 

Parol evidence is admissible to show -where a road is located. Although there 
•should be some uncertainty as to the precise location of the road, yet if the evidence be such 
as to convince the jurv as to its location, it is sufficient for them to act upon. Nealy v. Brown, 1 
Gilm. R., 10. 

If the pntolic is to toe charged -with the abandonment of a road, the proof of 
the fact must be accompanied by the further proof that another road has been adopted in its 
-stead. A public road, established by public authority, continues as such until it shall be vacated 
by like authority. Champlin v. Morgan, 20 111. R., 181. 

The notice for removal of fences shonld toe served by leaving a copy with the 
owner or occupant, and a true copy should in all cases be retained by the commissioners, as 
actual notice must be proved should it ever be questioned, and will not be presumed. The pre- 
sumption which is sometimes indulged in favor of public officers, does not extend to such a 
case. Case v. Thompson, 6 Wend. R., 634. 

A notice requiring a person to remove two certain rail fences built by him 
across a public road, and specifying the particular place of obstruction by stating the direction 
■of the fences made by him, was held sufficient. Ferris v. Ward, 4 Gilm. R., 499. 

Taking private property for pntolic use. The right of taking private property for 
public use, is a right inherent in all governments, as nec&ssary to its existence and protection. 
But, the constitution of the United States, and those of the several states, have provided that 
■compensation shall be made to the owner. Since the new era of internal improvements in this 
country, which has been inaugurated within the past half century, there has been much con- 
troversy as to the power of the legislature under this general constitutional provision. But it is 
settled "in Illinois under the present constitution, that the compensation must be made in money. 
Carpenter v. Jennings et al., 77 111. R., 250. 

The right to take private property for public use is called the right of Eminent 
Domain. It is allowed to be exercised by railroad companies and other corporations of like 
nature, on the principle that they are a public necessity, and in exercising this right they act 
as the agents of, and represent the public. Swan v. Williams, 2 Mich. R., 427; Robbins v. Mil. 6c 
H. R. R. Co., 6 Wis. R., 696; Shepardson v. Mil. & Bel. R. R. Co. et al., Id., 605. 

The constitutional provision respecting the taking of private property for 
public purposes, has no application to the case of a dedication of a highway by the owner, or 
where, from his long acquiescence in the public use of it, a dedication is presumed by law. 
Bumpus v. Miller, 4 Mich. R., 159. f 

Land which is taken and used for a highway is taken for public use within the 
meaning of the constitution. Norton v. Peck, 3 Wis. R., 714. But it is not so taken or appropriated 
-until the road is opened by the commissioners. Evans ex rel., etc. v. James et al., 4 Wis. R., 408. 



198 KOADS AND BBDDGES. [Dry. II* 



one dollar and fifty cents ($1.50) per day for each day necessarily 
employed in the performance of their duties, the same to be au- 
dited by the town auditors and paid out of the town funds. (1) 

118. Road to be opened in five years.] § 118. All highways 
laid out by order of the commissioners or supervisors, on appeal, 
shall be opened within five years from the time of laying out the 
same. If not opened within the time aforesaid, the same shall 
be deemed to be vacated.(2) 

119. Tax to be collected in money.] § 119. The highway com- 
missioners of each town shall annually ascertain, as near as prac- 
ticable, how much money must be raised by tax on real and per- 
sonal property for the making and repairing of bridges, the pay- 



An application for mandamus cannot "be defeated by the commissioners of high- 
ways, by showing that sixty days' notice have not been given to owners of lands to rein>ve their 
fences. The object of such proceeding is to compel them to take every initiatory step and per- 
form all acts necessary to open the road, after it has been legally laid out. As a general rule, the 
sixty days' notice to owners of lands required by the statute should be given upon the laying 
out of the road, where an appeal has not been taken. Although the commissioners are not ex- 
pressly authorized to give an extension of time for opening a road, yet the statute should have 
a reasonable construction. Cases may arise where it would not be the duty of the commission- 
ers to proceed at once to open a road ; as where a road is laid out through cultivated lands at a 
season when there are growing crops thereon. It would not be unreasonable to allow the own- 
ers sufficient time to gather their crops. But the mere fact of its being at a season when the 
road could not be put in repair, is not sufficient to authorize an extension of time, nor where 
crops have been planted after the final location of the road. Hall y. The People ex rel., etc., 57 111. 
R., 307. 

It is no defense against a proceeding \>y mandamus to compel the commissioners- 
of highways to open a public road established by them, that the same will not be fit for travel 
until bridges are ouilt, requiring a large sum of money, and that there are no funds to build the 
same. The command to open does not require the road to be put in good order. The question 
of the utility of the road is not involved in such suit. Sheaff, Com'r, v. The People, 87 111. R., ISl). 

In an application for mandamus against the commissioners of highways to compel them to 
open a road, any citizen of the town may be relator, and institute the proceeding. He need 
show no other interest than that of being a citizen of the town. Hall et al. v. The People ex rel., 
etc., 57 111. R., 307. 

Assessment and payment of damages. It seems to be settled that the commissioners- 
of highways cannot be compelled to open a road until the damages assessed to owners of lands 
taken have either been released or they have been paid their damages, or that it be shown that 
there is money under the control of the commissioners with which to tender or pay the dam- 
ages assessed. In the case of Hall et al. v. Tfie People ex rel. etc., 57 111. R.. 307, which was an ap- 
plication for mandamus to compel the opening of a highway, the court say (Scott, Justice) : 

The petition in this case is manifestly defective, in not averring that the damages assessed to- 
the land owners on the route of the road have been paid or released, or that there is money 
under the control of the commissioners of highways with which to tender or pay the damages 
so assessed. No man can be compelled to part with his property without just compensation. This 
is a constitutional right that he cannot be deprived of by any statute. No corporation, public or 
private, can appropriate the property of any one to their own use without first tendering or pay- 
ing the damages assessed under the forms of the law. The party ought not to be driven to his 
action against a corporation, responsible or irresponsible, for his damages. This would be to 
take his property without first making compensation, and would be a plain violation of a con- 
stitutional right. Under the peremptory writ awarded in this case, if the damages have not been 
paid or released by the owners of the land, it would be the duty of the commissioners of high- 
ways to tender such damages before proceeding to open the road. It was therefore material that 
the relators should aver in their petition, and prove that the damages which had been assessed. 
to the land owners had either been paid or released, or that there was money in the town treas- 
ury with which to pay the same, or that such funds were otherwise under the control of the com- 
missioners. 

(1) It would seem to "be but a fair construction of the law that the commissioners 
of highways should be allowed a reasonable compensation for their expenses in addition to the 
amount allowed per day. They would scarcely be expected to travel over the township on foot,, 
hence will necessarily incur the expense of some mode of conveyance. 

(2) On the subject of limitation of time for opening roads, see like provision as iB- 
the above section, ante, 1 65, and note thereto, p. 150, 151. 



DIV. H.] MISCELLANEOUS PROVISIONS. 199 

ment of damages by reason of the opening, altering and laying 
out of new roads, the purchase of the necessary tools, imple- 
ments and machinery for working roads; the purchase of the 
necessary material for building or repairing roads and bridges, 
the pay of the overseers of highways during the ensuing year ; 
commencing on Tuesday next preceeding the annual town meet- 
ing, which tax shall be extended on the tax books according to 
the assessment of the previous year ; and shall levy a tax on all 
the real and personal property in said town not exceeding forty 
cents on the one hundred dollars ; and they shall give to the su- 
pervisor of the township, and in Cook county to the county 
board, a statement of the amount necessary to be raised, and the 
rate per cent, of taxation signed by said commissioners or a ma- 
jority of them, on or before the Tuesday next preceding the an- 
nual September meeting of the board of supervisors, or the 
county board of Cook county, who shall cause the same to be 
submitted to said board for their action at such September meet- 
ing of said board :(1) Provided, that if the commissioners of 
highways, or any three legal voters, shall give notice by posting 
notices in at least three of the most public places of the town at 

(1) It is proper that the action of the commissioners of highways in ascertaining the 
amount of money to be raised in the town by taxation for bridges and other purposes, should be 
reduced to writing, and placed on file, and preserved by their treasurer. The following may be 
the form of their determination : 

Form of Tax Levy by Commissioners for Bridges and Other Purposes. 

State of Illinois, 1 

County, [as. board of commissioners of highways. 

Town of J 

The commissioners of highways of said town of having proceeded 

to ascertain, as near as practicable, how much money must be raised in 
said town by tax on real and personal property for the purposes follow- 
ing, duriug the ensuing year, as required by law, have ascertained and 
determined the same to be as follows, to wit : 

1. For the making and repairing of bridges $200.00 

2. For the paymeut of damages by reason of the opening, altering 

and laying outof new roads *300.00 

3. For the purchase of the necessary tools, implements and ma- 

chinery for working roads 800.00 

4. For the purchase of the necessary material for building and re- 

pairing roads and bridges 100.00 

5. For the pay of overseers of highways during the ensuing year... 200.00 

$1,600.00 

Commencing on Tuesday next preceding the annual town meeting, 18 — . 

The total amount for purposes aforesaid being sixteen hundred dollars, 

For raising which amount a tax is levied on all the real and personal 

property in said town, of cents on the one hundred dollars. 

Witness our hands, this day of , 18—. 

R. L., ) Commissioners 
E. S., \ of 

H. P.J Highways. 



200 KOADS AND BEIDGES. [DIV. IL 

least ten days before the annual town meeting, that a larger 
amount of money will be required for the purpose of constructing 
or repairing roads or bridges in their town than can be realized 
from the real and personal property tax authorized by law to be 
assessed by the commissioners, the legal voters present at such 



Form of Statement of Tax Levy by Commissioners to Give to Supervisor, 

State of Illinois, ") 

County, fss. board of commissioners of highways. 

Town of J 

To the supervisor of said town of : 

The commissioners of highways of said town have ascertained and de- 
termined that the total amount of money necessary to be raised byjtax on 
the real and personal property of the town of , in the county afore- 
said, the ensuing year, commencing on Tuesday next preceding the annual 
town meeting, 18 — , for the following purposes is as follows, to wit: 

For the making and repairing of bridges $200.00 

For the payment of damages by reason of the opening, altering and 

laying out of new roads , 300.00 

For the purchase of the necessary tools, implements and machinery 

for working roads 800.00 

For the purchase of the necessary material for building and repair- 
ing roads and bridges 100.00 

For the pay of overseers of highways during the ensuing year... 200.00 

$1,600.00 

Commencing on Tuesday next preceding the annual town meeting, 18—. 

Making the total amount of money for bridges and other purposes as 

above specified and enumerated sixteen hundred dollars, for raising which 

amount a tax has been levied on all the real and personal property in said 

town, of cents on the one hundred dollars. 

Witness our hands, this - — day of , 18 — . 

G. H., ) Commissioners 

I. J., [ of 

G. M.,J Highways. 

A tax for constructing and repairing roads, bridges and causeways to the extent al- 
lowed by law, may be levied by direction of the electors at town meeting. See Township Org'n 
Act, Div. 1, Art. IV, § 3. 

The commissioners of highways are required carefully to estimate the sum 

necessary to be expended in their township for bridges and other purposes mentioned for the 
ensuing 'year, and to levy the same if it does not exceed forty cents on the $100 worth of taxable 
property, and return the same to the county clerk on or before the Tuesday next preceding the 
annual meeting of the board of supervisors in September. They are limited to what will be re- 
quired for the ensuing year. ComWs of Highways v. Newell, 80 111. R., 587. 

The commissioners of highways have no power to incur indebtedness for road 
and bridge purposes, in any fiscal year, beyond the amount of the taxes already levied for that 
year. In other words, they can in no one year expend lawfully more than the tax levied for that 
year. Being powerless to borrow money, they are equally so to contract indebtedness, except 
that they may have such work done and repairs made, and give orders on their treasurer to the 
extent and not beyond the amount of tax already actually levied by them. After this levy is 
made they may incur indebtedness in the discharge of their duties before its collection. Com- 
missioners of Highways, etc. v. Newell, 80 111. R., 581. 

The commissioners have no authority to expend money on roads and bridges, in 
their towns or districts, which is not in the treasury, or which is not actually provided for by a 
levy. They can not anticipate a tax to be afterwards levied, and the annual revenue of one year 
must be devoted to the wants of that year. Braun v. The Town of Peoria, 82 111. R., 11. 

The tax which the commissioners of highways are authorized to levy, not ex- 
ceeding 40 cents on the $100, under % 16, ante p. 129, is payable in labor on the highways, while 
that authorized under g 119 is a money tax, to bt collected as other taxes. Mee et al. v. Paddock 
et al., 83 111. R„ 494. 



DIV. H.] MISCELLANEOUS PEO VISIONS. 201 

meeting may authorize an additional amount to be raised by tax, 
not exceeding forty cents on each one hundred dollars' valuation, 
and said board shall cause the same to be extended on the tax 
books.(l) 

120. How tax extended and collected.] § 120. According to 
the amount certified as aforesaid, the county clerk, when making 
out the tax books for State and county taxes for the collector, 
shall extend the necessary tax in a separate column against each 
tax-payer's name, or taxable property, as other taxes are ex- 
tended, which shall be collected the same as State and county 
taxes. (2) 

121. Certificate of tax levied.] § 121. It shall be the duty of 
the county clerk to make out and deliver to the treasurer of the 
commissioners of highways a certificate of the aggregate amount 
of tax so levied and placed upon the tax books. (3) 

The commissioners cannot levy a tax exceeding 40 cents on each 8100 valuation 
of property, except authorized by a vote of the people of the town, and if they attempt to do so 
the excess may be enjoined. Mee et al. v. Paddock et al., 83 111. R., 494. 

The commissioners are required to make their estimates for amount of money 
necessary, for the ensuing year commencing on Tuesday next preceding the annual town meet- 
ing, andTevy a tax to meet the expenses until the corresponding period of the next year. The 
fiscal year commences at the time aforesaid. Under the law as formerly existing, it was decided 
that the fiscal year commenced on Tuesday preceding the September meeting of the county 
board. Commissioners of Highways v. Newell, 80 111. R., 587. 

<1) Form of Notice for Voting at Town Meeting on Larger Tax for High- 
way Purposes. 

HIGHWAY TAX NOTICE. 

Notice is hereby given that a larger amount of money will be required 
for the purpose of constructing [or repairing, or as the case may be] roads, 
[or bridges, or as the case may 6e,] in the town of than can be real- 
ized from the real and personal property tax authorized by law to be as- 
sessed by the commissioners of highways. And that the question of 
authorizing an additional tax for the purposes aforesaid will be submitted 
i,o the legal voters of said town at the next annual town meeting. 

Dated this day of , 18—. 

R. L., ) Commissioners 
E. S., [ of 

H. P., J Highways. 
Or which notice may be signed by three legal voters. 

In case an additional highway tax is -voted at town meeting, the town clerk 
•should make a certificate thereof as in other cases of taxes voted, which it is proper he should 
deliver to the commissioners of highways, whose duty it is to deliver the same to the supervisor. 

(2) The requirement of Sec. 119, that the statement of the commissioners of highways 
•of the amount necessary to be raised for the making and repairing of bridges, laying out, open- 
ing and attending roads, etc., shall be submitted to the board of supervisors, at its annual 
meeting in September, for its action, is jurisdictional, and unless it is complied with, and the 
action of the board is had thereon, the county clerk is not empowered to extend the tax. Lead* 
man v. Dovgherty, 81 111. R., 324. 

(3) Form of County Clerk's Certificate of Aggregate Amount of Tax for 
Highway Purposes. 
:State of Illinois, \ 

County, 5 ss * 

I, A. B., county clerk of said county, do hereby certify that the aggre- 



202 ROADS AXD BRIDGES. [DIV. IL. 

122. Tax paid to treasurer of commissioners, except, etc.] 

§ 122. The tax so collected shall be paid to the treasurer of the 
commissioners of highways, by the collector, as fast as the same 
is collected, except such rate per cent, as shall be allowed for 
collecting the same : Provided, that the commissioners of high- 
ways may, in their discretion, expend such funds upon roads and 
bridges at any place within their respective town; but when ex- 
pended within the limits of any incorporated town, city or 
village, the same shall be done by and with the consent of the 
corporate authorities. (1) 

123. List of tax-payers to be furnished clerk.] § 123. The com- 
missioners of highways shall furnish to the clerk of the county 
court previous to the first day of October in each year, a list of 
tax-payers (alphabetically arranged) of each district. (2) 

124. Repeal.] §124 That an act entitled "An act in regard 
to roads and bridges," approved May 26, 1877, and in force July 
1, 1877, so far as the same relates to counties under township 
organization, and also all other acts or parts of acts inconsistent 
herewith, be and the same are hereby repealed. Provided, that 
the repeal of said act shall not affect any suit or proceeding 
pending, or impair any right existing at the time this act shall 
take effect. (3) 



gate amount of tax levied and placed on the books for highway purposes 

for the town of , is dollars, as appears by the evidence thereof 

now remaining in my said office. 
In witness whereof, I have hereunto set my hand, and affixed the 

seal of said county this day of , 18—. 

A. B., County Clerk. 

(1) The provisions of the above section, giving discretion to the commissioners 
as to expending money raised for taxes in their towns, would seem to take away the right of 
towns, cities and villages to claim any portion of this tax, given by the road law formerly in 
force under the decision of the supreme court in the case of Baird v. The People, 83 111. R., 387. 

(2) Form of List of Tax Payers by Commissioners of Highways. 

State of Illinois, 

County, 

Town of 

To A. B., clerk of the county court of said county: 
The following is a list of the tax-payers (alphabetically arranged) of 
each road district in said town of . 



••■ 



List of tax payers in Dist. No. 1. 

Adams, John Butler, Ben. F. 

(And so on, giving the tax payers in each district separately.) 

Witness our hands this day of , 18—. 

Signed by the Commissioners of Highways. 

(3) Where road tax was assessed upon real and personal property, under the law" 
of 1873, and the list delivered to the overseer of highways prior to the 1st of July. 1877, held, 
such taxes may be collected in conformitv to the provisions of the road law of 1873, and that, 
so far as necessary to enforce the collection of such taxes, the act of 1873 is not inconsistent, 
with the provisions of the act of 1877, and is not repealed thereby. Opinion Att'y Gen. Edsall. 



DIY. IL] HIGHWAYS — RECORD — VACATING. 203 



PLAT OF HIGHWAYS TO BE RECORDED. 

Section. 
[125.] Plat of highways, etc., to be made and recorded. 

[125.] Plat of highways, etc., to be made and recorded.] Kev. 

Stat. ch. 109. § 9. "Whenever any highway, road, street, alley, public 
ground, toll road, railroad or canal is laid out, located, 
opened, widened or extended, or the location thereof altered, 
it shall be the duty of the commissioners, authorities, officers, 
persons or corporations, public or private, laying out, locating, 
opening, widening, extending or altering the same, to cause a 
plat thereof showing the width, courses and extent thereof, and 
making such reference to known and established corners or 
monuments that the location thereof may be ascertained to be 
made and recorded in the office of the recorder of the county 
in which the premises taken or used for the same or any part 
thereof are situated, within six months after such highway, 
road, street, alley, public ground, toll road, railroad or canal, is 
laid out, located, opened, widened or extended, or the location 
thereof altered; and when any highway, road, street, alley, 
public ground, toll road, railroad or canal is vacated, the order, 
ordinance or other declaration vacating the same shall be in 
like manner recorded. This act shall not be construed to alter 
or affect any law specifically providing for the recording of any 
such plat, or to require the same to be recorded sooner than is 
so specifically provided ; except that any requirements to record 
such plat in any other place than is provided herein shall not 
excuse the parties from complying with this act. Whoever 
shall refuse or neglect to comply with this section shall forfeit 
twenty-five dollars, and the like sum for every month he shall 
continue in such refusal or neglect after conviction therefor, to 
be recovered before any justice of the peace of the county, in 
the name of the county, one-half to the use of the county, and 
the other half to the use of the person complaining. — [R. S., 1845,. 
p. 487, § 33. 

EFFECT OF VACATING PROPERTY. 

Section. 
[126.] Rights of adjoining owner. 

[126.] Rights of adjoining owner.] Eev. Stat. ch. 145. § 2. 
"When any street, alley, lane or highway, or any part thereof, has* 
been or shall be vacated under or by virtue of any act of this State 
or by the order of the city council of any city or trustees of any 
village or town, or by the commissioners of highways, county 
board, or other authority authorized to vacate the same, the lot 
or tract of land immediately adjoining on either side shall extend 



204 ROADS AND BRIDGES. [DIV. EL 



to the central line of such street, alley, lane or highway or part 
thereof so vacated, unless otherwise specially provided in the act, 
ordinance or order vacating the same, unless in consequence of 
more of the land for such street, alley, lane or highway having 
been contributed from the land on one side thereof than the 
other, such division is inequitable, in which case the street, 
alley, lane or highway so vacated shall be divided according to 
tne equities of the adjoining owners. [L. 1865, p. 103, § 1. 

RAILROAD TRACKS UPON HIGHWAYS. 
Rev. St., chap. 114, § 20, gives the following authority concerning railroad corporations. 

Fifth — To construct its railway across, along or upon any stream 
of water, watercourse, street, highway, plank road, turnpike or 
canal, which the route of such railway shall intersect or touch ; 
but such corporation shall restore the stream, watercourse, street, 
highway, plank road and turnpike thus intersected or touched, to 
its former state, or to such state as not necessarily to have im- 
paired, its usefulness, and keep such crossing in repair: Provided, 
that in no case shall any railroad company construct a road-bed 
without first constructing the necessary culverts or sluices, as the 
natural lay of the land requires for the necessary drainage thereof. 
Nothing in this act contained shall be construed to authorize the 
erection of any bridge, or any other obstruction, across or over 
any stream navigated by steamboats, at the place where any bridge 
or other obstructions may be proposed to be placed, so as to 
prevent the navigation of such stream ; nor to authorize the con- 
struction of any railroad upon or across any street in any city, or 
incorporated town or village, without the assent of the corporation 
of such city, town or village : Provided, that in case of the con- 
structing of said railway along highways, plank roads, turnpikes 
or canals, such railway shall either first obtain the consent of the 
lawful authorities having control or jurisdiction of the same, or 
condemn the same under the provisions of any eminent domain 
law now or hereafter in force it this state. (1) 

(1) Form of Consent of Commissioners of Highways to construct Railway 

along Highway. 

County, I 

Town of / ss * 

Application having been made to the Commissioners of Highways of 
said town of for that purpose, consent is hereby given by said Com- 
missioners to "The Railroad Company " to construct a railway along 

and upon the highway in said town, from to [deceribing the points 

within which the consent is given to construct the railroad] upon the terms 
and conditions imposed by the statute in such cases made and provided. 

In witness whereof, we have hereunto set our hands, this day 

of 18—. A. B., ) Commissioners 

C. D., \ of 

E. F.,J Highways. 



DIV. m.] DRAINS AND DITCHES. 205 

DIVISION III. 

DRAINS AND DITCHES. (1) 

AS ACT to provide for the organization of Drainage Districts and to provide for the constrao- 

tion, maintenance and repair of drains, and ditches, by special assessments 

on the property benefited thereby. [Approved May 29, 1879. 

In force July 1, 1879.] 

ORGANIZING DRAINAGE DISTRICTS — CONSTRUCTING DRAINS. 

BECTION. 

1. Drainage commissioners — Corporate name. 

2. Clerk of commissioners — Duties. 

3. Drainage district— Petition— Bond. 

4. Filing petition— Notice of meeting. 

5. Hearing — Affidavits — Finding. 

6. Dismissal of petition — Costs. 

7. Written statement of finding 

8. Adjournment— Examination— Survey — Estimates. 

9. Organization of districts — Number. 

10. Commissioners to locate work — Maps. 

11. Right of way — Damages. 

12. Damages assessed by jury — Venire — Notice. 

13. Trial — Verdict — Transcript. 

14. Commissioners to view land — Benefits — Assessment. 

15. Old ditch may be utilized. 

16. Notice of meeting to hear objections. 

17. Proof of notice. 

18. Assessment— Correction— Confirmation — Appeal — Bond. 

19. Summons to supervisors to hear appeal. 

20. Hearing — Judgment — Appeal to county court. 

21. Hearing appeal — Costs. 

22. Appeal not to delay collection nor work, etc. 

23. Assessment — When payable. 

24. Copy of assessment certified to treasurer — Bond. 

25. Treasurer to keep books. 

26. Division of work — Letting contract. 

27. Notice of letting — Advertising for proposals. 

28. Assessment paid in labor. 

29. Payment of damages — Deposit. 

30. Suits and expenses. 

31. Entry upon lands. 

(1) Another act on the subject of drainage was passed by the legislature at the 
same session of the passage of this act, but as this act took effect subsequent to the former act, 
that portion of the latter act which relates to drainage in township organization is supposed to 
be superceded by the provisions of this act. The intention being, it is believed, that the pro- 
visions of this act shall govern in proceedings under township organization. 

The constitution of Illinois, on the snhject of drainage, declares as follows : 
The general assembly may pass laws permitting the owners of lands to construct drains, 
ditches and levees, for agricultural, sanitary and mining purposes, across the land of others, and 
provide for the organization of drainage districts, and vest the corporate authorities thereof 
with power to construct and maintain levees, drains, and ditches, and to keep in repair all 
drains, ditches and levees heretofore constructed under the laws of this state, by special assess- 
ments upon the property benefitted thereby. Const., Art. IV, g 31, as amended 1878. 



206 DRAINS AND DITCHES. [DIV. HL 



32. Additional assessment. 

33. Bridges and culverts — How paid for. 

34. Sub-districts. 

35. Not to prevent other drainage. 

36. Penalty for injuring drain or work. 

37. Action for damages. 

38. Keeping drains in order. 

39. Penalty for failure to perform duty. 

40. Delinquent list— Sale. 

41. Payment of delinquent tax before sale. 

42. Collector of delinquent assessment — Give bond. 

1. Drainage commissioners— Corporate name.] § 1. That the 
commissioners of highways in every township in the several coun- 
ties under township organization, in this state, shall be the drain- 
age commissioners in and for their respective townships and as 
such shall be a body politic and corporate, and be the corporate 
authorities of all drainage districts within their townships, may 
sue and be sued, and exercise all the powers and perform all the 
duties hereinafter set forth. In all legal proceedings begun and 
carried on under the provisions of this act, their corporate name 
shall be the drainage commissioners of (name of township) town- 
ship, (name of county) county, and state of Illinois. 

2. Clerk of commissioners— Duties.] § 2. The town clerk 
shall be the clerk of the drainage commissioners, he shall be 
the custodian of all papers and records pertaining to drainage 
matters in his township, and shall keep in a well bound book to 
be known as the drainage record, a record of the proceedings of 
the commissioners, and shall enter at length therein, all the 
findings and orders of the commissioners pertaining to the subject 
of drainage. 

3. Drainage district— Petition— Bond.] § 3, The following 
proceedings shall be taken for the purpose of organizing a drain- 
age district. A petition shall be presented to the town clerk, 
signed by a majority in number of the adult owners of lands lying 
in said proposed district, and they shall be the owners in the 
aggregate of more than one-third of the lands lying in said dis- 
trict, setting forth the boundaries of said district, giving the num- 
bers of sections or fractional parts thereof. Said petition shall 
state that the lands lying within the boundaries of said proposed 
district require a combined system of drainage or protection from 
overflow ; that the petitioners desire that a drainage district may 
be organized embracing the lands therein mentioned, for the pur- 
pose of constructing, repairing or maintaining a drain or drains, 
ditch or ditches, within said district, for agricultural, sanitary or 
mining purposes, by special assessments upon the property bene- 
fitted thereby. Said petition shall be accompanied by a bond to 
the drainage commissioners, signed by at least two responsible 



iDIV. III.] ORGANIZING DHAINAGE DISTRICTS. 207 



persons, conditioned for the payment of all costs occasioned by 
said proceedings, in case said district shall not be organized.(l) 

4. Filing petition— Notice of meeting.] § 4. It shall be the 
duty of the town clerk to file said petition in his office, and he 
shall within five days after the filing of said petition, give notice in 
writing to each of the commissioners of highways of such town, 
of the filing of such petition, and shall give notice by posting 
written or printed notices, in at least six public places in said 
township, that a meeting of the drainage commissioners will be 
held at such place and time, as the commissioners may decide 
upon, not less than eight days nor more than fifteen days from 
the date of said notice, for the purpose of organizing said drain- 

(1) Form of Petition for Drainage District. 

To A. B., town clerk of the town of , county of - , state of 

Illinois : 

The undersigned petitioners, being a majority of the adult owners of 
lands, and owners in the aggregate of more than one-third of the lands 
lying in the drainage district hereby proposed to be established, bounded 
as follows : [here set forth boundaries, giving numbers of sections or frac- 
tional part thereof] ; do hereby respectfully represent and state that the 
lands above described, lying within the boundaries of said proposed dis- 
trict, require a combined system of drainage and protection from over- 
flow ; that said petitioners desire that a drainage district may be organized 
embracing the lands herein mentioned, for the purpose of constructing 
[repairing or maintaining] a drain [or drains, ditch or ditches, as the case 
may be], within such district, for agricultural [sanitary or mining, as the 
case may be] purposes, by special assessments, upon the property thereby 
benefited. 

Dated this day of , 18 — . 

Form of Bond to Accompany Petition. 

Know all men by these presents, that we, A. B. and C. D., of , are 

held and firmly bound unto the drainage commissioners of town- 
ship, county, and state of Illinois, in the penal sum of dol- 
lars, which sum well and truly to be paid we bind ourselves, our heirs, 
executors and administrators, jointly, severally and firmly, by these 
presents. 

Signed with our hands and sealed this day of , A. D. 18 — . 

The condition of the above obligation is such that, whereas, on the 

day of , A. D. 18, a petition was presented to the town clerk of the 

town of , county of , and state of Illinois, for the purpose of 

organizing a drainage district, signed by , being a majority of adult 

owners, and owners in the aggregate of more than one-third of the lands 
lying within the drainage district therein proposed to be established. 
Now, if the said A. B. and C. D. shall pay, or cause to be paid, to the said 
drainage commissioners of said township all the costs occasioned by the 
proceedings to establish said drainage district, in case said district shall 
not be organized, then this obligation to be void, otherwise to be in full 
force and effect. 

A. B. [seal.] 
C. D. [SEAX-j 

* Amended, 1881. See Appendix, p. 476, 



208 DKAINS AND DITCHES. [DIV. WL 

age district. He shall also file a copy of said notice in his 
omce.(l) 

5. Hearing— Affidavits— Finding.] § 5. It shall be the duty 
of the drainage commissioners to meet at the time and place 
mentioned in said notice, and the clerk shall lay before them the 
said petition and all other papers in the case, and they shall 
thereupon proceed to ascertain whether the said petition con- 
tains the signatures of a majority of the adult persons owning 
land in said district, and if they are the owners of more than 
one-third of the land situate in said district ; and the affidavits 
of two or more credible signers of said petition that they have 
examined the same, are acquainted with the locality of the dis- 
trict, and that they believe that said petition is signed by a ma- 
jority of the adult owners of land in said district, and that said 
signers are the owners of more than one-third of the lands in 
said district, the same may be taken as prima facie, evidence of 
the facts set forth in said petition as against the owners of lands 
in said district, and as conclusive evidence against all persons 
signing said petition, that they have accepted the provisions of 
this act as to the assessments of benefits and damages hereun- 
der. (2) At such meeting, any other owners of land within said 

(1) Form of Notice to Commissioners of Filing Petition. 

To A. B., CD. and E. F., commissioners of highways, town of y 

county of , and State of Illinois. 

Take notice, that a petition has been filed in my office, praying for the 
organization of a drainage district of the lands bounded as follows: [Des- 
cribe the lands and boundaries as in the petition.'] 

Given under my hand, this day of , A. D., 18—. 

G. H., Town Clerk. 
Form of Public Notice of Filing Petition. 

DRAINAGE NOTICE. 

To whom it may concern : 

Notice is hereby given that a meeting of the drainage commissioners of 

the township of , county of , and State of Illinois, will be held 

at } at the hour of , on the day of , A. D. 18 — , [not 

less than eight days nor more than fifteen days from the date of said no- 
tice,'] for the purpose of considering a petition filed in the office of the 

town clerk of said township, on the day of , 18 — , praying for 

the organization of a drainage district for the lands bounded as follows i 
[describe the same as in the petition.] 

Given under my hand this — - day of - f 18 — . 

G. H., Town Clerk. 
(2) Form of Affidavit of Two Petitioners. 
State of Illinois, ) ca 

—County, 5 

A. B. and C. D., being duly sworn, do each depose and say, that they 
are signers to a petition presented to and on file in the office of the town 

clerk of the township of , county and State aforesaid, prating for the 

organization of a drainage district for the lands bounded as follows , 

that they have examined the lands mentioned and described in said peti- 



DIV. m.] ORGANIZING DRAINAGE DISTRICTS. 209 

district shall be permitted to place their names on said petition, 
if they so desire. Any person owning land in said district, 
whose name does not appear on. said petition, may, at said time 
and place, appear and controvert any material statement in said 
petition ; and any person who has signed said petition may deny 
or withdraw his signature thereto, on payment of his propor- 
tion of costs incurred to that date, and for the purposes of such 
hearing, the said officers shall have full power to administer 
oaths to and examine all witnesses produced, and shall decide 
all such controverted questions at such time and place, and make 
a written statement of their finding, to be filed with the papers 
in the case. 

6. Dismissal of petition— costs.] § 6. If the commissioners 
shall find that the petition has not been signed by a majority of 
the adult owners of land situated in said proposed district, or that 
the signers of said petition do not own more than one-third of the 
lands in said district, they shall so decide, and the petition shall 
be dismissed at the cost of the petitioners, which costs shall be 
apportioned among the petitioners according to acreage of their 
lands respectively situated in said district. But such apportion- 
ment shall not prevent the commissioners from collecting such 
costs from the sureties required in section three of this act. 

7. Written statement of finding.] § 7. If the commissioners 
shall find that the petition is signed by a majority of the adult 
persons owning lands in said proposed district, and that the 
signers own more than one-third of the lands situated therein, 
they shall so decide, and shall make a written statement of their 
finding, and shall file said statement with the other papers in the 
case, and the clerk shall enter the same in his record : Provided, 
that if the commissioners shall fail to complete their investiga- 
tions on the day of meeting, they may adjourn to another day, not 
more than three days from such first day, and may, for good 
cause shown, again adjourn in like manner, until such investiga- 
tion is concluded. (1.) 

tion and are acquainted with the locality of the district, that they believe 
that said petition is signed by a majority of the adult owners of lands in 
said district, and that said signers are the owners of more than one-third 
of the lands in said district. A. B. 

Subscribed and sworn to before me this ") C. D. 

day of , A. D. 18—. 

E. F., J. P. 
(1) Form of Statement of Commissioners Finding, 
State of Illinois, 

County, 

Township of 

"Whereas, on the day of , A. D. 18—, we, the drainage com- 
missioners of the township of , county and State aforesaid, received a 

u 



n 

of Statement of Comm 

', Us. 



210 DRAINS AND DITCHES. [DIV. KL 

. 8. Adjournment— Examination— Survey— Estimates.] § 8. If 
the commissioners shall find in favor of the petitioners, as set 
forth in the last preceding section, they shall then adjourn their 
meeting to a time not less than eight days nor more than fifteen 
days, of which time the clerk shall give notice. The commission- 
ers shall, in the meantime, go upon the lands included in the pro- 
posed district, and personally examine the same ; and they shall 
have power to employ a competent civil engineer, if in their opin- 
ion the services of an engineer be necessary, who shall thereupon 
proceed to make such survey and estimates as the said commis- 
sioners may direct, and shall make and return to the said commis- 
sioners a map or plat of his survey, and a full report of all 
estimates so required of him.(l) 

letition to establish a drainage district of the lands bounded as follows: 

^describe same as in petition]] which said petition was signed by , 

purporting to be a majority in number of adult persons owning lands in 
said proposed district, and claimiog to be owners in the aggregate of more 
than one-third of the lands in said proposed district, and from examina- 
tion it appears to said commissioners, and they do find, that the persons 
whose names are signed to said petition are a majority in number of the 
adult owners of lands in said proposed district, and that the signers own 
more than one-third of the lands situated therein. 

In witness whereof the commissioners have hereunto set their hands 
this day of , A. D. 18—. 

p* jn m I Drainage 
E F ' ) Commissioners. 

(1) Tlic law fails to prescribe the object of tlie notice provided in the above section, 
or the manner of giving the same. It should probably be the same as prescribed in g 74, by post- 
ing in at least six public places in the township. The following may be the form of such notice: 

Form of Notice by Town Clerk of Adjourned Meeting of the Drainage Com- 

missioners. 

DRAINAGE NOTICE. 

Notice is hereby given that the drainage commissioners of the township 

of ? county of , Illinois, having met on the day of , 

18 — , and considered a petition for a drainage district in said township, 
of the following proposed boundaries, [here set forth the boundaries as 
in the petition,'] and having found in favor of the petitioners, there- 
fore did adjourn said meeting to be held at , in said township, on the 

day of , 18—, at — - o'clock, — M. 

Given under my hand this day of , 18—. 

G. H., Town Clerk. 

Form of Engineer's Report of Survey and Estimates. 

To the drainage commissioners of the township of , county of , 

Illinois : 
The undersigned, a civil engineer, having been employed and directed 
by you, said commissioners, to make a survey and estimate for drainage 
of the following lands, bounded and described as follows, to-wit: {describe 
the same as in the petition,] have made such survey and estimates, 
and hereunto annexed is a correct and accurate survey thereof, with map 



©IV. in.] OEGANIZING DKAINAGE DISTRICTS. 211 

9. Organization of district— Number.] § 9. At the time ap- 
pointed for the adjourned meeting, the commissioners shall meet 
and examine the map and report of the engineer, if any engineer 
shall have been employed and if, from their own examination and 
said map and report if any there be, it shall appear that the lands 
included in the proposed district will be benefited for agricultural, 
sanitary or mining purposes by the construction of a drain, or a 
combined system of drainage, they shall so find; unless they shall 
find from the evidence of witnesses then introduced that the cost 
of the proposed work will exceed the benefits to be derived there- 
from. And should they find in favor of the petitioners, or should 
a two-thirds (|) majority of the owners of land, owning more than 
one-half (J) of the lands lying in said proposed district, still desire 
the formation of said district, and such desire shall be evidenced 
by a failure to withdraw their signatures from the petition, the 
commissioners shall enter on their record an order in writing 
organizing said drainage district, and such district shall thereupon 
be declared fully organized. Each district shall be designated by 

a number, as District No. , in township, county, 

and State of Illinois. (1) * 

10. Commissioners to locate work — Maps.] § 10. Upon the 
organization of any drainage district as above provided, it shall be 
the duty of the commissioners to go upon the lands included in 
such district, and locate the work proposed to be constructed, re- 

or plat of the same, and a full report of all the estimates so required of me. 

All of which is respectfully submitted, this day of , 18 — . 

L. M., Civil Engineer. 

(i) Form of Order of Drainage Commissioners Organizing Drainage Dis- 
trict. 
State of Illinois, 

County. 

Township of 

Whereas, a petition and bond therewith having been duly filed in the 

town clerk's office, of said township of , on the day of , 

18 — , praying that a drainage district be organized, of the following boun- 
daries, to-wit: [describe the same], and said commissioners having met on 
the day of , 18 — , the time fixed therefor, and considered said pe- 
tition, notice of the time and place of said meeting being duly given by 
the town clerk, and having found in favor of said petition, did adjourn 

said meeting to the day of , 18 — , and having in the meantime 

went upon the lands in question and personally examined the same, and 
employed a civil engineer to make a survey and estimates in the premises, 

and having met on the day of , 18 — , pursuant to adjournment 

as aforesaid, and examined the map and report of the engineer employed 
as aforesaid, and it appearing that the lands included in the proposed dis- 
trict will be benefited for agricultural [sanitary or mining] purposes, by 
the construction of a drain, [or combined system of drainage,] said com- 
missioners do so find. It is therefore hereby ordered by said commission- 
ers, that a drainage district be, and the same is organized of the boundaries 

* Amended, 1881. See Appendix, p. 475. 



i. 



212 DRAINS AND DITCHES. [DIV. Ilk 

paired or maintained, and shall make or cause to be made a map 
or plat of the work necessary to be done, which map, shall be 
signed by the commissioners or a majority of them and shall be 
recorded in the Drainage Kecord.(l) 

11. Right of way — Damages.] § 11. The commissioners shall 
then proceed to procure the right of way for said work from the 
owners of the land upon which the same may pass, so far as they 
can do so by agreement with said owners, which release or releases 
of right of way shall be in writing, and shall be a perpetual bar 
to all claims for damages by the grantor or grantors or their as- 
signs, on account of the construction of such work. Such release 
or releases shall be filed in the town clerk's office, and he shall 
cause the same to be recorded in the office of the recorder of 
deeds in and for the county in which said lands are situated : 
Provided, that should the commissioners be compelled to pa 
damages for the right of way in any lands over which any wor 
may run by virtue of the finding of a jury called to assess dam- 
ages, as hereinafter provided, that then and in that case they 
shall allow damages equitably to other owners of lands through 
which such work may be located, notwithstanding such owners 
may have released such right of way without adequate compen- 
sation. (2) 

and comprising the lands mentioned and described in the petition therefor 

aforesaid, designated by number as District No. — , in township, 

county, and State of Illinois, and the same is declared fully organ- 
ized. 
Witness our hands this day of— , 18—. 

P* j)"' \ Drainage. 
E F ' ) Commissioners. 

(1) Form to be Added to Map by Commissioners. 
State of Illinois, 

County, 

Township of 



L f ss * 



The undersigned, drainage commissioners of said township of 



having gone on the lands and located the work as prayed for in a petition 
heretofore filed herein, to be constructed [repaired or maintained] for agri- 
cultural [sanitary or mining] purposes, by the construction of a drain, [or 
combined sytem of drainage,] have made [or caused to be made] the an- 
nexed [or above] map or plat of the work necessary to be done. 
Witness our hands this day of , 18 — . 

p ' S'» ) Drainage 
E F ' f Commissioners. 

(2) Form of Agreement for Bight of Way and Release of Damages by 

Owner of Land. 

This agreement made this day of , 18—, between the drainage 

commissioners of the township of , county of , and State of 

Illinois, and L. M., of , witnesseth that whereas a drainage district 



©IV. m.] CONSTRUCTING DRAINS. 213 

12. Damages assessed by jury —Yenire— Notice.] §12. Should 
the commissioners be unable to procure the right of way by 
agreement with the owner or owners of any lands over which the 
work may be located, they shall file a statement in writing with 
some justice of the peace in the vicinity, requesting him to issue 
a venire for a jury to assess the damages in such case or cases ; 
and it shall thereupon be the duty of the justice to issue a venire 
for a jury of six disinterested freeholders, to appear at his office 
at a day and hour therein named, not less than $nq nor more 
than eight days therefrom, for the purpose of assessing the dam- 
ages in the case or cases mentioned.(l) The justice shall at the 
same time cause a notice or notices in writing to be served upon 
the owner or owners of the lands in question, informing him or 



has been organized in said township, comprising lands owned by said L. 
M., to-wit: [describe the lands'], over which a drain is desired to be passed 
according to a plat and survey thereof, now on file in the town clerk's of- 
fice of said township, and it is agreed between the parties aforesaid that 
the full amount of damages of said L. M. for right of way and in the con- 
struction of said drain according to said survey and plat are dollars, 

and said L. M., in consideration of one dollar paid by said drainage com- 
missioners does hereby agree to accept said sum in full payment of his 
damages as aforesaid, and to grant and release the right of way for said 
drain on payment thereof, and, which amount when paid and receipt 
thereof acknowledged by said L. M. by indorsement hereon, shall oper- 
ate as a grant and release of the right of way aforesaid. 

In witness whereof said parties have hereunto set their hands and seals 
the day and year first above written. 

A. B., [SEAL. 

C. D., [seal. 

E. F., [SEAL. 

Drainage Commissioners. 
L. M., [seal.] 

The law contemplates that the commissioners will proceed, at once and procure 
the right of way before any funds are raised for payment of damages. It cannot be expected 
that full grants and releases will be given by the owner of lands until his damages are paid. 
The foregoing form is suggested as the most convenient that can be devised to meet the peculiar 
provisions of the law in this regard. 

(1) Form of Application by Commissioners to Justice for Venire. 

State of Illinois, ~\ 

County, V ss. 

TTownship of .J 

To R. S., Justice of the Peace: 

The undersigned drainage commissioners of said township of 

having applied to A. B., the owner of lands in drainage district No. — , in 
said township, to procure the right of way for a certain drain over said 
lands, over which the work of said drain has been located pursuant to the 
statute, and being unable to procure the right of way therefor by agree- 
ment with said A. B., we do request of you, said justice in the vicinity, 
tto issue a venire for a jury to assess the damages in such case. 

Witness our hands, this day of , 18—. 

(Signed by the Commissioners.) 



214 DRAINS AND DITCHES. [DIY. ILL 



them of the time and place when the said case or cases will be- 
tried. Said notices may be substantially in the following form : 

To A. B. : — You are hereby notified that a jury has been called to meet 

at my office, in township, county, on the day of f 

A. D. 18 — , at o'clock, — M., for the purpose of assessing damages in. 

the matter of the drainage commissioners of township, • 

county, against you ; when and where you can appear and assert your 
rights in the premises if you desire. C, S., J. P. 

Said notice shall be served by a constable in the same manner 
and with like effect as process in civil cases, and his return* 
thereon shall show the manner such service was made, and for 
such service he shall be allowed the same fees as for service of 
process in civil cases : Provided, that where it shall be made to 
appear that any of such owners are non-resident, unknown or 
minors, notice of such proceeding shall be given by publication 
in some newspaper published in said county, for two successive 
weeks prior to the time of such hearing, which notice shall be 
substantially in the form given above : Provided, further , that in 
any case where the commissioners certify that the damages will 
probably exceed two hundred dollars ($200), the proceedings 
shall be begun in the county court.* 

13. Trial— Yerdict— Transcript.] § 13. When the jury shall 
appear, as provided in the foregoing section, the trial shall be 
conducted as other cases before a justice of the peace, or county 
court, as the case may be ; either party may have the same num- 
ber of challenges and for the same causes as in other cases be- 
fore justices of the peace, or the county court, as the case may 
be. The jury shall hear the evidence offered in the case as to 

Form of Venire for Jury. 
State of Illinois, \ 

County, r 9 ' 

The People of the State of Illinois to any constable of said county. Greet- 
ing: 
We command you to summon six disinterested freeholders having the 

qualifications of jurors to appear before me, at my office, at , on the 

"day of , A. D. 18—, at o'clock, — M., for the purpose of 

assessing the damages sustained by A. B., owner of land over which the 
drainage commissioners propose to locate and construct a drain [or com- 
bined system of drainage] in drainage district No. — , in the township of 

, in said county, and have you then and there this writ. 

Witness my hand, this day of , 18 — . 

John Doe, J. P. 

The question is raised, whether the jury in this case should not consist of twelve- 
persons, as in other cases where the compensation is not made by the state. The proceeding be- 
fore the justice is not a trial according to the recognized definition of that term. That the legis- 
lature have by this act styled a trial cannot change the manifest intention of the framers of the 
constitution. See Const., Art. II, § 13. 

As to maimer of conducting cases before justices of the peace, challenges and 1 
empanneling juries. See Haines' Treatise on the subject of "Trial and Incidents Thereto." 

Objections to defective notices in proceedings under the Drainage Act will be waived* 
by subsequent appearance. Gilkersou v. Scott, 76 111. R., 509. 

* Amended, 1881. See Appendix, p. 476. 



DIV. m.] CONSTRUCTING DRAINS. 215 

the value of the land proposed to be taken, and all damages 
consequent upon the construction of the proposed work; and 
may go upon the premises for the purpose of viewing them, and 
they shall return as their verdict the amount of damages found, 
if any, in favor of the owner or owners, and against the commis- 
sioners, and the justice of the peace, or county judge, shall enter 
judgment for the amount of such verdict, which judgment shall 
be final and conclusive. Vacancies in the panel of jurors shall 
be filled the same as vacancies in other cases, but vacancies 
shall in all cases be filled by freeholders, and the same jury 
shall hear and determine all cases for which the venire was 
issued, and shall return separate verdicts as to each owner or 
joint owners. And the justice or judge shall thereupon file in 
the office of the clerk of the drainage commissioners a certified 
transcript of the proceedings before him in each case.(l) * 

(1) Form of Verdict of Jury. 
State of Illinois, \ In Justice Court, before A. B., 

County, J * Justice of the Peace. 

In the matter of the assessment of damages consequent upon the con- 
structing of a drain [as the case may be] over the lands in drainage dis- 
trict No. — , in the township of , in said county, described and owned 

as follows, viz : 



DESCRIPTION OF LAND. 



OWNED BY 



We, the jury, summoned to assess the damages in the above cause, and 
having taken the c ath required by law, and having heard the evidence 
offered, as to the value of the lands proposed to be taken, and all damages 
consequent upon the construction of the proposed work, and having 
visited the lands [if such is the fact] over which the proposed improve- 
ment is to pass, do assess the damages that we deem the claimants are en- 
titled to, as follows : 

To O. P., the sum of dollars. 

Given under our hands this day of , A. D. 18—. 

(Signed by jurors.) 

It may be well in each separate verdict to set out a description of all the lands in question, 
with names of owners, as suggested in the preceding form, concluding with a separate verdict 
or assessment as to each owner. 

Where a Juror is discharged in the course of the proceeding and another substi- 
tuted in his place without the consent, or in the absence of parties interested, it is a fatal error. 
Gilkerson v. Scott, 76 111. R., 509. 

Form of Docket Entry of Justice in Proceeding to Assess Damages for 

Drain. 
Stateof nimote, j gg# Before c g Justice of tne Pea(fe# 

In the matter of application of drainage commissioners") 

of the township of , for assessment of damages > 

of A. B., to land for drain. J 

18 — , — Statement of drainage commissioners filed requesting jury 

to assess damages of A. B., to his land by reason of constructing diain 

* Amended, 1881. See Appendix, p. 477. 



216 DBAINS AND DITCHES. [DIV. HI. 

14. Commissioners to view land— Benefits— Assessment.] §14. 

At the earliest practicable day after the organization of the 
district, the commissioners shall proceed to view the line or 
lines of the proposed work and determine the cost of the same, 
and shall view the lands to be benefited thereby, and ascertain, 
to the best of their judgment, the amount of the benefits which 
will accrue to each tract of land to be affected thereby, and shall 
assess to each tract of land its proportionate share or the entire 
cost of such work ; but in no event shall any tract of land be 
assessed for benefits in a greater amount than its proportionate 
share of the estimated cost of the work and all expenses of pro- 
ceedings, nor in a greater amount than it will be benefited by 
the proposed work according to the best judgment of the com- 
missioners ; and they shall make out and file in the office of the 
town clerk an assessment roll, in which shall be set down in 
proper columns the names of the owners, when known, and when 
unknown, stating "unknown," a description of the premises 
affected, in words or figures, or both, as shall be most convenient; 
the number of acres in each tract, the amount of land taken 
from such tract, and the value thereof; and if damages are 
allowed, the amount of the same ; and if benefits are assessed, 
the amount of the same ; and in case damages are allowed to and 
benefits assessed against the same tract of land, the balance, if 
any, shall be carried forward to a separate column for damages 
or benefits, as the case may be.(l) 

over same; venire issued, day of hearing 18 — , at — o'clock, — M ; 

notice issued to A. B. of time of empanneling jury; returned, served by 
constable as follows, [give copy of return]. 

18 — , Parties appear; venire returned and following jury empan- 

neled, [give names']. Upon hearing the allegations and proofs of the re- 
pective parties the jury return their verdict that [set forth substance of 
verdict]. It is therefore considered by the court that [name of owner] 
have and recover, to be paid by said drainage commissioners, the sum of 
dollars as damages for [state for what.] C. S., J, P. 

Form of Certificate to Transcript of foregoing Docket Entry. 

State of Illinois, \ 

County, ; ss - 

I, C. S., a justice of the peace in and for said county, do hereby certify 
that the foregoing is a true and correct transcript of the proceedings therein 
set forth as the same are entered and appear recorded in my docket, and 
that the same is correctly copied therefrom. 

Given under my hand and seal this day of , 18 — . 

C. S., J. P. 
(1) Form of Commissioners' 1 Assessment Roll. 
State of Illinois, ] 

County, V ss. 

Township of ■ J 

Assessment roll made by the drainage commissioners of the township 
of , county of , and state of Illinois, in assessing tin damages 



biy. m. 



CONSTRUCTING DRAINS. 



217 



15. Old ditch may be utilized,] § 15. When it shall appear to 
the commissioners that a drain or ditch has been, in whole or in 
part, previously constructed for the purpose of draining or pro- 
tecting from overflow any land to be affected by the work pro- 
posed under this act, and such original work can be advan- 
tageously utilized, they may estimate the value of such old ditch, 
and allow the owner such part thereof as will make an equality of 
burdens and benefits as between the several owners of lands in 
the said district. 

16. Notice of meeting to hear objections.] § 16. The commis- 
sioners shall cause to be personally served upon all parties own- 
ing land to be affected by the proposed work, and residing in 
the county, a written or printed notice of the time when and 
place where they will meet to hear any and all objections that 
may be made to their special assessments for benefits, and shall 
cause to be sent, by mail, such notice to all owners who do not 
reside in the county, whose land is to be affected, in case their 
post-office address is known to petitioners, or any of them, or 
can be ascertained by use of reasonable diligence ; and in case 
the land of any non-resident or minor is to be affected, then pub- 
lication shall be made in some newspaper published in said county, 
for three successive weeks prior to the time of such hearing. (1) * 



and benefits for [here state the work for which the 
•drainage district No. — . 


assessment is made'] , in 


Name 

of 
owners. 


Description 

of 

premises. 


No. 

of 

acres. 


Amount 

of 

land taken. 


Value 

of 

land taken. 


Amount 
of 

damages 
allowed. 


Amount 

of 
benefits 
assessed. 


Balance 

of 
benefits. 


Balance 
of 

damages. 


L. M 

O.p 


s.w.k's.1 

N.W. j| S, 1 


160 
160 


5 rods. 
5 rods. 


20 00 
10 00 


10 00 
10 00 


5 00 
15 00 


5 00 


5 00 







In witness whereof we, said drainage commissioners, have hereunto set 
our hands, this day of , 18-. A. B., i Drainage 

tt<" T7>* ' V Commissioners. 
Hi. r ., j 

It is error to assess the whole of the expense of making a drain, and the costs of the 
proceeding, upon the one tract of land, leaving another benefited not charged with its propor- 
tionate share. Gilkerson v. Scott, 76 111. R., 509. 

The taking of land for drains is a taking under the power of eminent domain. Peo- 
ple v. Supervisors etc., 26 Mich. R., 22-29; People v. Nearing, 27 N. Y. R., 306. 

The doctrine of eminent domain is strictly applicable only to the condemnation of 
property, and not to the levy of a tax. Hessler v. Drainage Commissioners, 53 111. R., 105. 

Taxes and special assessments can only he levied by such authorities as the consti- 
tution prescribes. Updike v. Wright, 81 111. R., 54. 

When special taxes are levied, not upon the valuation of tbe lands assessed, nor 
confined to ihe special benefits conferred by the proposed improvement for which they were 
authorized, it will be a violation of the principles of equality and uniformity required by the 
construction, and the taxes will be illegal. Lee v. Ruggles, 62 111. R., 427. 



To 



(1) Form of Notice to Owners. 



You are hereby notified that the drainage commissioners of the town- 
ship of , county of , and state of Illinois, have fixed upon the 

* Amended, 1881. £ee Appendix, p. 477. 



218 DRAINS AND DITCHES. [DIV. nL 

17. Proof of notice.] § 17. The affidavit of any credible per- 
son or persons that he has or they have posted such notices here- 
inbefore required, and the certificate of the publishers of such 
newspaper as to such publication, shall be sufficient evidence of 
such facts. 

18. Assessment — Correction — Confirmation — Appeal Bond.] 

§ 18. At the time of meeting for hearing objections to the special 
assessments made by the commissioners, they shall hear whatever 
objections may be urged by any person interested, to any special 
assessment made by the commissioners, and if satisfied that any 
injustice has been done in any special assessment, they shall cor- 
rect the same in accordance with justice and the right of the mat- 
ter ; but if not so satisfied, they shall confirm the assessment ab- 
originally made, and»enter an order to that effect. Any person ap- 
pearing and urging objections, who is not satisfied with the- 
decision of the commissioners in confirming a special assessment 
against his lands, may appeal from the decision of the commission- 
ers to three supervisors of the county, within ten days after the 
decision of the commissioners has been rendered, by filing with 
the town clerk a bond, with security, in double the amount of the 
assessment, payable to the commissioners, conditioned for the- 
payment of the assessment and all costs occasioned by the appeal,, 
in case said assessment shall be affirmed. (1) 

day of , A. D. 18 — , at the hour of , — M., at in saidi 

town, as the time and place, when and where they will meet to hear any 
and all objections that may be made to their special assessments for bene- 
fits to lands owned by you in drainage district No. , in said township, 

in consequence of the construction of a proposed drain [or as the case may 
be], over the same, when and where you can appear and make objections- 
if you desire. A. B., 

batedthis dayof ,18-. C. D., f 



I D., \ 
rm of Order Confirming As 



(1) Form of Order Confirming Assessment. 
State of Illinois, 

County, 

Township of 

We, the drainage commissioners of the township of— — , having heard 
the objections of, [here state the names of all persons objecting,'] to the 
special assessment made by us in [here state the purposes of the assessment} 
in drainage district No. — , in said township, are of opinion that said as- 
sessment was in accordance with justice and right, and we do hereby im 
all things confirm the same. 

Dated this _ day of , A. D. 18-. A. B., 1 Drainage 

t? -ci"' C Commissioners. 
Jjj. x 1 ., j 

Form of Appeal Bond. 

Know all men by these presents, that we, A. B. and C. D., of the town 

of , county of , and State of Illinois, are held and firmly bound* 



DIV. HI.] CONSTRUCTING DRAINS. 219^ 

19. Summons to supervisors to hear appeal.] § 19. It shall be 
the duty of the town clerk to summon three supervisors of the 
county living nearest the office of the town clerk, but outside his 
township, to meet at his office at a time not more than ten days 
from the filing of the appeal bond for the purpose of hearing any 
appeal or appeals that may be taken from the decision of the com- 
missioners. Should any of said supervisors fail to appear at the 
time named, the clerk may adjourn said meeting for a period not 
exceeding five days, and summon another supervisor or supervi- 
sors to fill the vacancy or vacancies. (1) 

20. Hearing— Judgment— Appeal to county court.] §20. When- 
ever the supervisors summoned to hear appeals shall all appear as 
hereinbefore provided, it shall be the duty of the town clerk to lay 
before them the assessment roll, and they shall examine the same, 
and may hear testimony in support of such assessment appealed 
from and in opposition to the same, and may, if they deem it neces- 
sary, visit the lands upon which assessments have been made. 
Should the supervisors, after hearing the case, affirm the action of 

unto the drainage commissioners of the township of , county of , 

and State of Illinois, and their successors in office, in the penal sum of 
{double the amount of the assessment], which sum well and truly to be paid, 
we bind ourselves, our heirs, executors and administrators, jointly and 
severally, firmly by these presents. 

Signed with our hands and sealed this day of , A. D. 18 — . 

The condition of this obligation is such, that, whereas, the above boun- 
den A. B. has appealed from a decision of the drainage commissioners of 

the township of , county and state aforesaid, confirming a special 

assessment made againt his land in drainage district No. — , for the pur- 
pose of, [here state for what,] which order of confirmation is dated the ■ 

day of , A. D. 18—. 

Now, therefore, if the above bounden A. B. shall pay or cause to be paid 
the amount of the assessment aforesaid, and all costs occasioned by this 
appeal, in case said assessment shall be affirmed, then this obligation to 
be void, otherwise to remain in full force and effect. 

A. B., [SEAL.] 
C. D., [SEAL.] 

(1) Form of Summons to Supervisors to hear Appeal. 

State of Illinois, ") 

County, y ss. 

Township of . J 

To A. B., supervisor of the township of , to C. D., supervisor of the 

township of , E. F., supervisor of the township of : 

You are hereby summoned to meet at my office at , on , [not 

more than ten days from filing of appeal bond,] at the hour of o'clock, 

— M., for the purpose of hearing an appeal [or appeals] taken by G. H., 

from the decision of the drainage commissioners of township, in 

confirming a certain special assessment against his lands situated in drain- 
age district No. — , county and state aforesaid. 

Given under my hand this day of , A. D. 18 — . 

L. M., Town Clerk. 



"220 DKAINS AND DITCHES. [DIY. IIL 

the commissioners, they shall file with the clerk their decision to 
that effect. Should they deem the assessment excessive, they 
may enter an order remitting such portion of such assessment as 
they may deem in excess of right; or should they deem the as- 
sessment wholly erroneous they may wholly annul the same , and 
the clerk shall correct the assessment roll in accordance with the 
decision of the supervisors : Provided, that either party aggrieved 
by the decision of the supervisors may appeal to the county court 
by filing bond in the county clerk's office within ten days from the 
time when the supervisors render their decision, the party against 
whose land an assessment has been made shall appeal only, on the 
ground that such assessment is greater in amount than the benefits 
accruing to said lands by the construction of the proposed work. 
Should the commissioners appeal they may do so without giving 
bond. Should the person against whose lands an assessment has 
been made appeal, the bond shall be conditioned for the payment 
of whatever judgment shall be rendered against him in the county 
court. (1) 

(1) Form of Appeal Bond in Appeal to County Court. 

Know all men by these presents, that we, A. B. and C. D., of the town 

of , county of , and state of Illinois, are held and firmly bound 

unto the drainage commissioners of the township of , county of 

, and state of Illinois, in the penal sum of dollars, which sum 

well and truly to be paid, we bind ourselves, our heirs, executors and ad- 
ministrators, jointly, severally and firmly by these presents. 

Signed with our hands and sealed, this day of , A. D. 18 — . 

The condition of the above obligation is such, that, whereas, the above 
bounden A. B. has appealed from the decision of, [names of supervisors,] 
three supervisors in the matter of [here state matter] to the county court 
of said county. 

Now, therefore, if the said A. B. shall pay or cause to be paid, the 
amount of whatever judgment shall be rendered against him in the county 
court, in the matter of said appeal, then this obligation to be void, other- 
wise to remain in full force and effect. 

A. B., [seal.] 

C. D., [SEAL.] 

Form of Order of Supervisors Confirming Decision of Commissioners. 
State of Illinois, \ „ 

County, /"• 

Whereas, on the day of , A. T>. 18 — , the drainage commission- 
ers of the township of , entered an order confirming a special assess- 
ment against the lands of G. H., described as follows: [describe the lands,] 
for the proposed work of constructing a drain, [or, as the case may be,] 

over said land, in drainage district No. — , in the township of . And 

said G. H. prayed an appeal from said decision to three supervisors, and 

filed with the town clerk of the township of , county of •, and 

State of Illinois, his appeal bond in the sum of dollars, payable to the 

drainage commissioners of said township of , conditioned for the pay- 
ment of the assessment and all costs occasioned by this appeal, from the 
decision of the said drainage commissioners in confirming a special assess- 
ment against his lands, for the construction of a drain [as the case may be]. 



DIY. m.] CONSTRUCTING DRAINS. 221 

21. Hearing appeal — Costs.] § 21. Appeals taken to the 
otmnty court under the provisions of this act may be heard at 
any term thereof : Provided, ten days has intervened from the 
time of taking such appeal and the first day of the term, and if 
not ten days, then such appeal shall be heard at the next term ; 
and trials shall be conducted as in other cases of appeals. Should 
the decision of the supervisors be affirmed or wholly reversed, 
costs shall follow the judgment; but should such decision be 
modified, costs may be apportioned by the court in its discretion : 
Provided, that in any proceedings under this act, where any costs 
have been unnecessarily or improperly made, such costs may be 
adjudged against the party making the same. 

22. Appeal not to delay collection nor work.] § 22. The tak- 
ing of any appeal by any person or persons, as herein provided^ 
shall not operate to delay the collection of any special assess- 
ment from which no appeal has been taken, nor delay the pro- 
gress of the work. 

23. Assessment— When payable.] § 23. At the time of con- 
firming such special assessment, it shall be competent for the 
commissioners to order the assessment of benefits to be paid in 
installments of such amounts and at such times as will be con- 
venient for the accomplishment of the proposed work ; otherwise, 
the whole amount of such assessment shall be payable immedi- 
ately upon such confirmation, and shall be a lien upon the lands 
assessed until paid ; and such assessments shall draw interest 
at the rate of eight (8) per cent, per annum from the time they 
shall become payable till they are paid, and such interest may be 
collected and enforced as part of the assessments. 

And the said town clerk of said town having summoned us, the 
undersigned, three supervisors of said couutj^, to meet at his office, on the 

day of , to hear said appeal ; and having met on the day 

of , A. D. 18 — , at the office of the town clerk as aforesaid, and hav- 
ing had laid before us the assessment roll, and examined the same, and 
having heard the testimony offered in support of such assessment appealed 
from, and in opposition thereto, and having visited the lands, [if such be 
the case,] we do affirm the action of the drainage commissioners in con- 
firming the special assessment against the lands of the said . 

If the assessment is excessive, the following may be the order: 

(We find that the assessment is excessive in the amount of dollars, 

and remit the same from the amount as found by said commissioners.) 

Or, should they deem the assessment wholly erroneous, the following 
may be the order : 

(We find that the assessment is wholly erroneous, and annul the same.) 

Dated this day of , A. D. 18— 

A. B., Supervisor, town of . 

C. D., Supervisor, town of . 

E. F., Supervisor, town of . 



'^22 DKAINS AND DITCHES. [DIT. m. 

24. Copy of assessment, certified to treasurer— Bond.] § 24. 

Immediately after the entry of such confirmation of the special 
-assessments, the clerk shall make out and certify to the treasurer 
a copy of said assessment roll ; and the said treasurer shall exe- 
cute bond to the people of the state of Illinois for the use of all 
persons interested, in a sum not less than twice the amount of 
assessments levied, conditioned for the faithful performance of 
his duties as treasurer of said drainage district, and that he will 
faithfully account for all money that, by virtue of said office, 
shall come to his hands ; and such bond shall be with such sureties 
as may be approved by the commissioners, and said bond shall 
be kept and preserved in the town clerk's office .(1) 

25. Treasurer to keep books.] §25. It shall be the duty of said 
treasurer to keep proper books, furnished him by the commission- 
ers, in which he shall keep an accurate account of all moneys re- 
ceived by him, and of all disbursements of the same ; he shall 
pay out no money except upon the order of a majority of the com- 
missioners, and shall carefully preserve on file all orders for the 
payment of money, given him by the commissioners, and shall turn 
over all books, papers, vouchers, moneys and property belonging 
to and in his hands, as such treasurer, to his successor in office.(2) 

(1) Form of Bond of Treasurer of Drainage District. 

Know all men by these presents, that A. B., of the township of , 

county of , and state of Illinois, and C. D. and E. F., as sureties, are 

held and firmly bound unto the people of the State of Illinois for the use 

of all persons interested, in the penal sum of dollars, which sum well 

and truly to be paid, we bind ourselves, our heirs, executors and adminis- 
trators, jointly and severally, firmly by these presents. 

Signed and sealed this day of -, A. D. 18—. 

The condition of the above obligation is such that if the above bounden 
A. B. shall faithfully perform his duties as the treasurer of drainage dis- 
trict No. — , in the township of , county of , and State of Illi- 
nois, and will faithfully account for all moneys that by virtue ot said office 
shall come to his hands, then this obligation to be void, otherwise to remain 
in full force and effect. A.B., [seal.] 

C. D., [seal.] 
E. F., [SEAL.] 

This bond and the sureties approved this day of , A. D. 18 

fer' j ' I Drainage 
T K ' \ Commissioners. 

(2) Form of Order of Drainage Commissioners on Treasurer, 
State of Illinois, ] 

County, \ ss. 



Township of 

To the treasurer of the drainage commissioners of district No. — : 

Pay to A. B. or order the sum of dollars for . 

Dated this day of . A. D., 18-. R. L., j Drain age 

i^' p' j" Commissioners. 



3)IY. HI.] CONSTKUCTTNQ DKAINS. 223 

26. Division of work— Letting contract.] § 26. The said com- 
missioners, when the j have procured the right of way for the pro- 
posed work, shall divide the ditch or ditches, into sections a quar- 
ter of a mile in length, except the remainder or remainders, after 
taking out as many full sections as the work contains, which re- 
mainder or remainders may be let with the adjoining section, or sep- 
arately, as the commissioners may think best ; or they may let the 
same in one contract: Provided, further, that no drain, ditch, or other 
work authorized to be constructed or made under this act, shall 
be constructed or made, in such a manner as to destroy or impair 
the usefulness, or prevent the public use of any bay or harbor, 
or body of water used as a harbor connected with any navigable 
stream. 

27. Notice of letting— Advertising for proposals.] § 27. Upon 

the confirmation of the assessment, the commissioners shall cause 
notice to be given of the time and place of the letting, and of the 
kind and amount of work to be done, and where plans of the same 
may be seen, by publication for twenty days in some newspaper 
printed or published in said county. Said bids shall be under 
seal, and the commissioners may reject any and all bids, and may 
continue the letting from time to time if, in their judgment, the 
same be necessary. If the cost of the entire work will not exceed 
five hundred dollars ($500), the commissioners shall let the same 
at such time and in such manner as they may think best. Said 
commissioners shall not, during their term of office, be interested, 
directly or indirectly, in any contract for the construction, repair 
or maintenance of any work in such drainage district, nor in the 
wages nor supplies to men or teams employed on any work under 
their jurisdiction. Any person or persons taking any work under 
contract shall, on the completion thereof, according to contract, 
be paid for such work by the treasurer, upon the order of the com- 
missioners. If any person or persons to whom any portion of 
said work shall be let as aforesaid, shall fail to perform said work, 
the same shall be re-let in such manner as the commissioners may 
think best.(l) 

(1) Form of Notice of Letting Contract. 

Public notice is hereby given that the drainage commissioners of the 

township of , county of , and State of Illinois, will receive 

bids, under seal, up to noon of the day of , A. D. 18 — , for the 

[here state kind and amount of work to be done]. Plans of said work are on 
file at [state where], where the same may be seen. The said commis- 
sioners reserve the right to reject any and all bids. 

Dated at , this day of , A. D. 18—. 

c'd'I Drainage 
E F ' J Commissioners. 



224 DRAINS AND DITCHES. [DP7. IEL 

28. Assessment paid in labor.] § 28. In case any person 
assessed for benefits contracts to do any work, and said work i& 
done according to contract, the commissioners shall give said per- 
son a receipt for so much of said assessment as said work amounts 
to, and said receipt may be received by the treasurer as payment 
of so much of said assessment. 

29. Payment of damages— Deposit.] § 29. All excess, if any, 
of allowances for right of way and damages, over the amount of 
special assessment for benefits against the same person, shall be 
paid or tendered to the owners thereof, before the commissioners 
shall be authorized to enter upon said lands for the construction 
of any work thereon ; in case the owner is unknown, or there 
shall be a contest in regard to the ownership of the land, or the 
commissioners cannot, for any reason, safely pay the same to the 
owner, they may deposit the same with the clerk of the county 
court, and the court may order the payment thereof to such party 
as shall appear to be entitled to the same. 

30. Suits and expenses.] § 30. The commissioners may use 
money arising from the collection of assessments for the purpose 
of compromising suits and controversies arising under this act,, 
and in employment of all necessary agents and attorneys in the 
prosecution or defense of said operations, and to pay all necessary 
employes. 

31. Entry upon lands.] § 31. The commissioners from the 
time of receiving any petition, may authorize any employes to go 
upon the lands lying within said district, for the purpose of ex- 
amining the same and making surveys ; and after payment or ten- 
der of compensation allowed, may authorize all contractors with 
their servants, teams, tools, instruments, or other equipments for 
the purpose of constructing such proposed work, and may ever 
thereafter enter upon said lands as aforesaid, for the purpose of 
maintaining or repairing such work, doing no more damage than 
the necessity of the occasion may require, and any person who 
shall willfully prohibit or prevent any of the aforesaid persons 
from entering such lands for the purpose aforesaid, shall be fined 
in a sum not to exceed twenty-five dollars ($25) per day, for such 
hinderance, to be collected as other fines. 

32. Additional assessment.] § 32. When the assessments 
hereinbefore made shall be inadequate to complete the work pro- 
posed, or when assessments shall be necessary for maintenance 
and repair, each tract of land shall be assessed such proportion of 
the additional cost as its original assessment bore to the total 
original assessment, and the said additional assessment shall be 
made by the commissioners in the same manner as the original 
assessment was made ; and in all subsequent matters in relation 



DIY. III.] CONSTRUCTING DRAINS. 225 

thereto, the same proceedings shall be had as hereinbefore required 
in regard to original assessments. 

33. Bridges and culverts— How paid for.] § 33. The commis- 
sioners shall have power and are hereby required to make all 
necessary bridges and culverts for the protection of ditches made 
hereunder ; but said bridges and culverts shall be paid for as fol- 
lows : When in a public highway, it shall be paid out of the road 
and bridge tax ; and when in a farm, it shall be paid for by the 
drainage commissioner. * 

34. Sub-districts.] § 34. During the progress of the work, 
or at any subsequent time the commissioners when petitioned to 
create a "sub-district" (within any district organized as afore- 
said), for the purpose of constructing any lateral drain or drains 
for the further reclamation of lands within such "sub-district," 
by special assessments of the property benefited thereby, shall 
be governed by the provisions of this act which are applicable 
thereto.* 

35. Not to prevent other drainage.] § 35. Nothing in this act 
shall be construed to forbid or prevent the drainage of any lands, 
the drainage of which would require to be conducted to the same 
outlet through which the waters of any ditch constructed under 
this act shall flow.* 

36. Penalty for injuring drain or work.] § 38. Any person 
who shall wrongfully and purposely fill up, cut, injure, destroy 
or in any manner impair the usefulness of any drain, ditch, or 
other work constructed, established, or lying within any district 
organized under this act for the purpose of drainage or protection 
against overflow, may be fined in any sum not exceeding two 
hundred dollars, to be recovered before a justice of the peace in 
the proper county. All complaints under this section shall be 
in the name of the people of the State of Illinois, and all. fines, 
when collected, shall be paid over to the proper commissioners, 
to be used for the work so injured. 

37. Action for damages.] § 37. In addition to the penalties 
provided in the preceding section, the person so wrongfully or 
purposely filling up or in any manner impairing the usefulness 
of any such drain or drains, shall be liable to the commissioners 
having charge thereof, for all damages occasioned to such work, 
and to the owners and occupants of land for all damages that 
may result to them from such wrongful act, which may be recov- 
ered before a justice of the peace, if within his jurisdiction, or 
before any court of competent jurisdiction. 

38. Keeping drains in order.] §38. All ditches and drains 
shall, at all times, be kept in good order and repair by the com- 

]_£ * Amended, 1881. See Appendix, p. 4ft. 



226 DRAINS AND DITCHES. [DIY. IH. 

missioners, and the lands affected by said work, shall pay their 
proportionate amount of cost, which shall be in the same pro- 
portion that the lands were originally assessed. 

39. Penalty for failure to perform duty.] § 39. For a failure 
to perform any of the duties imposed upon them by the provis- 
ions of this act, the commissioners so failing shall individually, 
upon complaint made under oath by any person who has paid a 
special assessment for the construction, maintenance or repair of 
such work, be liable to a fine not exceeding one hundred dollars 
($100), to be recovered in an action in the name of the people of 
the State of Illinois, for the use of the district interested, before 
any justice of the peace in said county, and all fines, when collec- 
ted, shall be paid to the treasurer of the district. 

40. Delinquent list— Sale.] § 40. It shall be the duty of the 
treasurer of each and every drainage district to make out a certi- 
fied list of such delinquent lands upon which the assessments re- 
main unpaid, and the same shall be by him, on or before the 10th 
of March next after the same have become payable, returned to 
the county collector of the county or counties in which such 
lands shall lie ; and it shall be the duty of the collector to whom 
such return has been made, to transfer the amounts thereof 
from such returns to the tax books in his hands, setting down 
therein, opposite the respective tracts or lots, in proper columns 
prepared ior that purpose, the amount assessed against each tract 
or lot ; and the like proceedings shall be had, and with like force 
and effect, in the collection of such delinquent assessments and 
the sales of said lands for the non-payment thereof as in ordinary 
collections of State and county taxes by county collectors, and of 
sales of real estate by them for such non-payment and of redemp- 
tions from such sales.(l) 

(1) Form of Delinquent List. 
State of Illinois, 

County, 

Township of 

I, A. B., treasurer of the drainage district No. — — , of the township of 
county of , and State of Illinois, do hereby certify that the 



,' [ss. 



following is a correct list of delinquent lands upon which the assessments 
remain unpaid for [here state for what]. 



NAMES OF OWNERS. 



DESCRIPTION OF 
LAND. 



AMOUNT ASSESSED 
AND DUE. 



In witness whereof I nave hereto set my hand this day of 

18—. 

A. B., Treasurer of Drainage District No. 



ODIV. ITL CONSTRUCTING DKAINS. 227 



41. Payment of delinquent tax before sale.] § 41. Notwith- 
standing the returns of such delinquent list, the said treasurer 
of the drainage district may receive payment of any such delin- 
quent assessments and costs, and may give receipts for the same, 
but shall keep a memorandum of the same, and on or before the 
day of sale fixed by said county collector for sale of such lands, 
shall present said memorandum or list to said county collector 
for the purpose of having the same checked or marked paid on 
delinquent list in his hands; and all amounts collected by the 
said county collector by sale or otherwise, after deductions of his 
fees, shall be paid to the treasurer of the drainage district on de- 
mand. (1) 

42. Collector of delinquent assessment— Give bond.] §42. 

"When the certified list of such delinquent lands upon which the 
assessments remain unpaid has come into the hands of the 
county collector, as aforesaid, the said collector shall execute 
bond to the drainage commissioners for the use of all persons 
interested in a sum, not less than twice the amount of the delin- 
quent assessments, conditioned for the faithful performance of 
his duties as collector of said delinquent assessments, of said 
drainage district, and that he will faithfully account for all mon- 
eys that by virtue of said delinquent assessments, shall come to 
his hands ; and such bond shall be with such sureties as may be 
approved by the county judge, and said bond shall be kept and 
preserved in the county clerk's office. (2) 



(1) Form of Receipt by Treasurer of Drainage District for Assessments. 
State of Illinois, 



County 



lois, ~\ 
nty, Us. 
— J 



Township of, 

Received from the sum of dollars, in payment of assess- 
ment and costs for [here state for what] 

A. B., Treasurer of Drainage District No. — 

(2) Form of Bond of Collector of Delinquent Assessment. 

Know all men by these presents, that A. B., county collector of the 

county of , and State of Illinois, and C. D. and E. F., sureties, are 

held and firmly bound unto the drainage commissioners of the township 

of , county of , and State of Illinois, in the penal sum of [double 

the amount of delinquent assessment] which sum well and truly to be paid 
we bind ourselves, our heirs, executors and administrators, jointly, sever- 
ally and firmly by these presents. 

Signed and sealed this day of , A. D. 18 — . 

The condition of the above obligation is such that if the above bounden 
A. B., county collector, shall faithfully perform his duties as collector of 
the delinquent assessments of drainage district No. — , in the township 
aforesaid, and will faithfully account for all moneys that by virtue of such 
delinquent list shall come to his hands, and pay over to the treasurer of 
said drainage district No. — , on demand, all amounts collected by him 



228 DRAINS AND DITCHES. [DIY. ILL, 



COUNTIES NOT UNDER TOWNSHIP ORGANIZATION. 

Section. 

43. Drainage commissioners. 

44. Petition for drainage district. 

45. Meeting of commissioners — Proceedings. 

46. Appeal. 

43. Drainage Commissioners.] § 43. The county commission- 
ers, in counties not under township organization, shall be tho 
drainage commissioners in and for their respective counties, shall 
be a body politic and corporate, with like powers and duties as 
drainage commissioners as hereinbefore provided for. In all 
legal proceedings under this act their corporate name shall be 
" The Drainage Commissioners of County, State of Illi- 
nois.'* In such counties the county clerk shall be the clerk of the 
drainage commissioners, and he shall perform all duties devolved 
upon clerks of drainage commissioDers, as hereinbefore specified 
in this act. 

44. Petition for drainage district.] § 44. Whenever a major- 
ity of the adult owners of land, and owning more than one-third 
of any area of lands lying in a county not under township organ- 
ization, and requiring a combined system of drainage or protec- 
tion from overflow, desire to form a drainage district, they shall 
file in the office of the county clerk a petition setting forth the 
facts as provided in section three of this act; which petition shall 
be accompanied by a bond as in said section provided. It shall 
thereupon be the duty of the clerk to give notice that a meeting 
of the drainage commissioners will be held, as provided in sec- 
tion four of this act. 

45. Meeting of commissioners— Proceedings.] § 45. The com- 
missioners shall meet at the time mentioned in said notice and 
examine the said petition, and they shall thenceforth, in all pre- 
liminary and subsequent matters, as to the organization of such 
district, location of work, procuring right of way, awards of dam- 
ages, levy of special assessments for benefits, confirmation of the 
same and other matters, proceed in accordance with the provis- 
ions of this act in regard to the duties and powers of drainage com- 
missioners of townships, and shall in all cases be vested with the 
same powers and exercise the same duties as such commissioners. 

by sale or otherwise, then this obligation to be void, otherwise to remain 
in full force and effect. 

G. H., [seal/ 

I. J., [SEAL." 

K. L., [seal/ 

Bond and sureties approved by , this day of , A. D. 18- 

E. F., County Judge. 



BIV. m.] DISTRICTS LYING IN TWO COUNTIES. 229 

4:6. Appeals.] § 48. Appeals from the orders of drainage 
commissioners, confirming any special assessments in counties 
not under township organization, may be taken by any person in- 
terested, who is not satisfied with the decision of the commission- 
ers, to the county surveyor, county treasurer and sheriff, who shall 
constitute a board of appeals, who shall meet when notified by 
the clerk, for the purpose of hearing appeals in such cases ; and 
at such meeting they shall proceed as hereinbefore provided for 
supervisors when hearing appeals in like cases. Either party 
aggrieved by the action of the board of appeals may appeal 
therefrom to the county court on the same conditions, under the 
same restrictions and with the like effect as hereinbefore provided 
for appeals from supervisors. 

DISTRICTS COMPOSED OF LANDS LYING IN TWO COUNTIES, OR IN TWO 
TOWNSHIPS IN COUNTIES UNDER TOWNSHIP ORGANIZATION. (1) 
Section. 

47. Lands lying in two counties — Mode of proceeding. 

48. Appeals — How taken. 

47. Lands lying in two counties— Mode of proceeding.] § 47. 

When lands lying in two counties, or in two townships in coun- 
ties under township organization, would be benefited by a combined 
system of drainage, and a majority of the owners of such lands, 
owning more than one-third (£) of such lands, desire the forma- 
tion of a drainage district, they may file a petition as provided in 
section three of this act, in the office of the clerk of that board 
of commissioners in whose jurisdiction the greater part of said 
lands are situated. It shall thereupon be the duty of said clerk 
to give notice as provided in said section, and at the meeting held 
in pursuance of such notice both boards of commissioners shall 
act ; and should a district be organized, all of such commission- 
ers shall constitute the drainage commissioners of such district, 
and in the preliminary and all subsequent proceedings in regard to 
formation of such district, construction of works therein, procur- 
ing right of way, the award for damages, the levy and collection 
of special assessments for benefits, the confirmation thereof and 
appeals therefrom, they shall proceed as hereinbefore provided : 
Provided, that all proceedings for condemnation of right of way 
and the assessment of damages consequent upon the construction 
of such work, shall take place in the county in which the lands 
affected are situated. The clerk in whose ofiice the petition is 
filed shall be the clerk of such drainage commissioners. 

(1) The proceedings in case of lands in two counties or two townships are in- 
tended to be substantially the same as in case of proceedings in a single township hereinbefore 
provided; the same forms can be used as heretofore given in such cases by changes to suit the 
occasion. 



230 DEAINS AND DITCHES. [DIV. III.. 

48. Appeals — How taken.] § 48. When such district lies 
wholly within a county or counties under township organization 
appeals from the order of the commissioners confirming special 
assessments shall be taken to three supervisors, as hereinbefore 
provided, but where the district lies in two counties, all of such 
supervisors shall not reside in the same county. When such 
district lies wholly within counties not under township organi- 
zation, appeals shall be taken to the county surveyors, county 
treasurers and sheriffs of the several counties, who shall act as a 
joint board of appeals. And when the district lies partly in a 
county under township organization and partly in a county 
not under township organization, the appeal shall lie to a 
board consisting of three supervisors from the county under 
township organization, chosen as provided in section nineteen of 
this act ; and the county surveyor, county treasurer and sheriff of 
the county not under township organization, shall act as a joint 
board. All of said boards of appeal in this section provided for 
shall proceed and determine the cases submitted to them in the 
manner and to the effect set forth in section twenty hereof. From 
the decisions of any of the boards of appeal mentioned in this 
section, appeals shall lie, as provided in section twenty of this 
act, to the county court of the county in which the land concern- 
ing which the appeal is taken is situated, and such appeal shall 
be tried in like manner and with like effect as hereinbefore pro- 
vided in cases of appeals to such courts. Districts lying in two 
townships or counties shall be designated as Union District No. 
— , in , and township or counties, as the case may be. 

SPECIAL DRAINAGE DISTEICTS.(l) 
Section. 

49. How formed — Petition — Bond. 

50. Hearing on petition. 

51. Proceedings on hearing appointment of commissioners. 

52. Corporate name — Powers. 

53. Notice of election. 

54. Election — Commissioners — Term of office. 

55.. Oath— Treasurer— Bond— Duties— Term of office. 

56. Duties of commissioners. 

57. Appeals. 

58. Power to borrow money. 

59. Who to be treasurer. 

60. Meaning of " Ditch." 

4:9. How formed— Petition — Bond. ] § 49. Whenever a majority 
of the adult owners of land, who shall be the owners of more than 

(1) The proceedings in case of special drainage districts are intended to be- 

Bubstantially the same as for the organization of a general or regular drainage district provided 
at the beginning of this act, and the same forms can be used as heretofore given in such casea 
by changes to suit the occasion. 



DIV. IIL] SPECIAL DEAINAGE DISTRICTS. 231 

one-tliird of the lands in an area of territory lying in more than two 
townships, either in the same or different counties, under township 
organization, or lying partially in more than two townships, in a 
county under township organization, and partly in a county not under 
township organization, shall file in the office of the clerk of the count}?- 
court of the county in which the greater part of such lands shall 
lie, a petition setting forth the facts as provided in section 3 oi 
this act, and praying that a special drainage district may be 
formed, it shall be the duty of said clerk to give notice by posting 
written or printed notices in at least six public places in such 
township or county in which said proposed district or any part 
thereof shall lie, and also by publication in some weekly news- 
paper published in his county for two successive weeks, stating 
the day when such petition will be heard, which hearing may be 
at any term of said court, occurring not less than ten days after 
the last publication above provided for. The petition above men- 
tioned shall in all cases be accompanied by a bond conditioned 
for the payment of all costs to the officers of the court, or accru- 
ing to other parties by virtue of such proceedings, in case such 
district is not established ; which bond shall be signed by at least 
three responsible persons and approved by the clerk. 

50. Hearing on petition.] § 50. It shall be the duty of the 
said court at the time set for such hearing, to examine the said 
petition, and if the court shall find, upon examination, that it is 
signed by a majority of the adult owners of the lands within said 
proposed district, and that such signers are the owners of more than 
one-third of the lands lying therein, the court shall so find. The 
affidavits of three credible signers of such petition that they have 
examined the same, that they are acquainted with the locality, and 
that they verily believe that such petition is signed by a majority of 
the adult owners of lands lying in said proposed district, and that 
they are the owners in the aggregate of more than one-third of such 
lands, shall be taken as prima facie evidence of such facts, against 
all persons owning lands therein, and as conclusive evidence against 
all the signers of such petition of the facts therein stated, and that 
they have accepted the provisions of this act as to the assessments 
of benefits and damages hereunder. At such meeting any other own- 
ers of land within said district shall be permitted to place their 
names on said petition if they so desire. Any person owning land in 
said district whose name is not on said petition may, at said time 
and place, appear and controvert any material statement in said 
petition, or any signer thereof may deny or withdraw his signature 
thereto on payment of his proportion of costs incurred to that date, 
and for the purpose of such hearing the court shall have power to 
examine witnesses produced at such time. 



232 DEAINS AND DITCHES. [DIY. m. 

51. Proceedings on hearing — Appointment of commissioners.] 

§ 51. Should the court find against the petitioners, it shall enter 
an order to that effect, and the petition shall thereupon be 
dismissed at the cost of the petitioners. Should the court 
find in favor of the petitioners, it shall enter an order to 
that effect, and it shall thereupon be the duty of the court 
to appoint three drainage commissioners for said district, who 
shall at once proceed to the examination, survey and organ- 
ization of said district in all matters as provided in sections 
eight and nine of this act, and the clerk shall give notice of the 
time when and place where the commissioners will meet to com- 
plete the organization of such district, which time shall not be 
more than thirty (30) days subsequent to the date of the appoint- 
ment of such commissioners. At the meeting for completing the 
organization of such district the proceeding shall in all respects 
conform to the requirements of this act, as set forth in the matter 
of the formation of districts lying wholly within a township. 
Upon the filing of the order of the commissioners declaring such 
district organized, the clerk shall enter the same of record, and 
said district shall thereupon be deemed fully organized. * 

52. Corporate name — Powers.] § 52. Each special drainage 
district organized as herein provided, shall be known and desig- 
nated by a name, as " . . . Special Drainage District, in the 
county or counties of ... , and State of Illinois." The com- 
missioners thereof shall be a body politic and corporate, with 
like powers as herein conferred upon other drainage commissioners. 

53. Notice of election.] § 53. So soon as a special drainage 
district has been organized, it shall be the duty of the county 
clerk, who shall be the clerk of the commissioners thereof, to 
give notice by posting written or printed notices in at least six 
public places in said district, that on a day therein named, not 
less than ten days from the date of notice, at a place in said 
notice designated, an election will be held for the purpose of 
electing three drainage commissioners for said district. (1)* 

54. Election— Commissioners— Term of office.] §54. At all 
elections held for the election of drainage commissioners, the 

(1) Form of Notice of Election for Drainage Commissioners in Special 

Drainage District. 

Public notice is hereby given, that on the day of , {not less 

than ten days from date of notice'], A. D. 18 — , at , in the township 

of — — , county of , and State of Illinois, an election will he held 

for the purpose of electing three drainage commissioners for special 

drainage district in the county [or counties] of , and State of Illinois. 

Given under my hand this day of , 18 — . 

A. B., County Clerk, 

And Clerk to Drainage Commissioners of said special drainage district. 

* Amended, 1881. See Appendix, pp. 478, 479. 



DIV. HI.] SPECIAL DRAINAGE DISTEICTS. 233 

drainage commissioners then in office shall be the judges of 
election, and in the absence of any of them the electors present 
may choose a person or persons to fill the vacancy or vacancies. 
Such elections shall be conducted in all respects in accordance 
with the general election laws of the state : Provided, that no 
person shall be eligible to the office of drainage commissioner, 
or to vote at any election held hereunder who is not a resident 
of and an owner of land in such district. The returns of such 
election shall be transmitted to the clerk of the commissioners, 
who shall canvass the vote as the returns for the election 
of county officers are canvassed, and the three persons hav- 
ing the highest number of votes shall be declared elected, and 
the clerk shall thereupon notify said persons of their election. 
The persons so elected shall determine among themselves by lot 
their respective terms of office, one of whom shall serve for one 
year, one for two years, and one for three years, or such parts 
thereof as may expire upon the election of their successors re- 
spectively; and annually thereafter, on the first Saturday in 
September, there shall be elected in each special district one 
drainage commissioner, who shall hold his office for three years 
and until his successor is elected and qualified. * 

55. Oath—Treasurer— Bond— Duties— Term of office.] § 55. 
'Said commissioners shall thereupon each take an oath to 
faithfully discharge the duties of his office as drainage com- 
missioner, which oath shall be signed by him and filed in the 
office of the clerk. They shall then appoint some person who 
shall be a land owner within and a resident of said district, as 
treasurer, who shall give bond to the commissioners in such 
sum as shall be fixed by them not less than double the amount 
likely to come into his hands in any one year, which bond shall 
be signed by at least two responsible securities and approved by 
the commissioners and filed in the office of the clerk. He shall 
hold his office for two years, but may be removed by the com- 
missioners at any time for cause. He shall have like powers 
and perform the same duties herein provided for other treasurers 
of drainage districts. He shall pay out moneys only on or- 
ders signed by the commissioners, or a majority of them.(l)* 

(1) Form of Oath of Drainage Commissioners. 
State of Illinois, \ 

County, f ss - 

I, , do solemly swear [or affirm] that I will support the constitu- 
tion of the United States, and the constitution of the State of Illinois, and 
that I will faithfully discharge the duties of the office of drainage com- 
missioner of \name of drainage district] in county and State of 

Illinois, according to the best of my ability. A. B. 

Subscribed and sworn to before me this 

day of A. D. 18—. 

** Amended. 1881. See Appendix, p. 479. E. F., J. P. 



7\ 



234 DRUNS AND DITCHES. [DIV. HI,. 

56. Duties Of commissioners.] § 56. The commissioners shall' 
then at once proceed to locate the drain or drains, ditch or ditches,, 
procure the right of way, institute proceedings therefor, and for 
the award for damages consequent upon the construction of the 
proposed work, make special assessments for benefits, and in all 
the foregoing and subsequent proceedings, including the letting of 
contracts, the confirmation and collection of special assessments, 
and all other matters they shall be governed by the provisions 
of this act, relating to the powers and duties of drainage com- 
missioners of townships. 

57. Appeals. § 57. Appeals from the orders of the commis- 
sioners of special districts confirming special assessments, if the 
district lies wholly within a county or counties under township 
organization, shall be taken to three supervisors, as provided for 
appeals in cases of districts lying wholly within a township or in. 
two counties under township organization, as the case may be. 
If the district lies within a county or counties under township- 
organization and a county or counties not under township organ- 
ization, the appeal shall be taken to the joint boards of appeal 
of the several counties. From the decision of such tribunals 
appeals shall be as hereinbefore provided, and with like effect 
to the county court of the county in which the land upon which 
the assessment made is situated.* 

58. Power to borrow money.] § 58. The commissioners may 
borrow money not exceeding in amount half the amount of 
assessments unpaid at the time of borrowing, for the construc- 
tion of any work which they shall be authorized to construct,, 
and may secure the same by notes or bonds bearing interest at 
the rate not exceeding eight per cent, per annum, and not running- 
beyond one year after the last assessment on account of which 
the money is borrowed shall fall due, which notes or bonds shall 
not be held to make the commissioners personally liable for the 
money borrowed, but shall constitute a lien upon the assessment 
for the repayment of the principal and interest thereon. 

59. Who to be treasurer.] § 59. In all districts, in counties 
under township organization, the supervisor of the township in 
which the district is situated, shall be the treasurer of the district. 
When the district lies in two townships, the supervisor of one of 
the townships to be designated by the commissioners shall be the 
treasurer. When a district lies in a county not under township 
organization, the county treasurer shall be the treasurer, and 
when the district lies in two counties not under township organ- 
ization, the commissioners shall appoint the treasurer of one of 
said counties the treasurer of the district. When a district lies 
partly in a county under township organization, and partly in a* 

* Amended, 1881. See Appendix, p. 480. 



DIY. HI.] OWNEK, OR JOINT OWNERS — OUT-FALLS. 235 

county not tinder township organization, the commissioners may- 
appoint either a supervisor or county treasurer as the treasurer 
of the district, as they may determine. The treasurer shall, in 
all cases, give to the commissioners a bond in double the amount 
of the sum likely to come into his hands for the use of the dis- 
trict interested. 

60. Meaning of "ditch."] § 60. The word "ditch," when 
used in this act, shall be held to include a drain or water course, 
and the petition for any such improvement, shall be held to in- 
clude any lateral ditch, drain, or water course necessary to be 
constructed to secure the object of the improvement, whether the 
same be mentioned therein or not, and this act shall extend to 
and include the straightening of streams and water courses, and 
cleaning driftwood out of the same, and the making of such ditches 
or drains as may be found necessary to divide the overflow of any 
stream or water course. 

AN OWNER, OR JOINT OWNERS AS TENANTS IN COMMON, TO PROCURE OUT- 
FALLS. 
Section. 

61. Opening drains through lands of another. 

62. Notice to adjoining owner. 

63. Assent by adjoining owner. 

64. Assent to be recorded. 

65. When owner does not assent. 

66. Drainage — Commissioner may act. 

67. For right of way and other proceedings. 

68. Fees. 

69. Act not affect prior laws. 

61. Opening drains through lands of another.] § 61. Any 

owner, or joint owners as tenants in common, desirous to drain 
the same and in order thereto deem it necessary that a new drain 
or drains should be opened through lands belonging to another 
owner, or that -an existing drain or drains in lands belonging to 
another owner should be cleansed, widened, straightened or oth- 
erwise improved, may apply to such owner, who is hereinafter 
referred to as the adjoining owner, for leave to make such drain 
or drains, or improvement in drain or drains, through or on the 
lands of such adjoining owner. 

62. Notice to adjoining owner.] § 62. Any such application 
as aforesaid, shall be by notice in writing, under the hand of the 
applicant, and shall be served on the owner, and also on the oc- 
cupier, if the owner be not the occupier. The notice shall state 
the nature of such drain or drains, or improvements in drain or 
drains, be accompanied by a map, on which the length and depth,, 
and if an open ditch, the width of the proposed drain or drains, 
or improvements in drain or drains, shall be delineated, and shall 



*236 DRAINS AND DITCHES. [DIV. IIL 

further state the compensation, if any, which the applicant pro- 
poses to pay, or which the applicant proposes that the adjoining 
owner shall 4 pay.(l) 

63. Assent by adjoining owner.] § 63. The adjoining owner 
may, by deed, under his hand and seal, assent to such application, 
upon such terms and payment of such compensation as may be 
agreed upon ; and any assent so given or agreement so made, shall 
be binding on all parties, their heirs and assigns. (2) 

64. Assent to be recorded.] § 64 The applicant shall cause 
to be recorded, in the recorder's office in the county wherein the 
land is situate, the deed containing the assent of the adjoining 
owner to the proposed drain or drains, or improvement in drain or 
drains, and, also, a map showing the location of the same. 

65. When owner does not assent.] § 65. If the adjoining 
owner does not assent to the application, then the said person 
making the application may give notice, in writing, to said ad- 
joining owner, and, also, to the occupier, if the owner be not the 

(1) Form of Application by Notice to Adjoining Owner for Leave to Con- 
struct Drain. 
To A. B. : 

I do hereby apply to you and notify you to that effect, that I am desir- 
ous to drain lands owned by me, and in order thereto deem it necessary 
that a new drain [or as the case may be] should be opened through lands 
adjoining belonging to you, described as follows: [here describe the land 
of the adjoining owner in question], my said lands being described as fol- 
lows : [here describe the lands]. The nature of said drain is as follows, 
to-wit : [state the nature of the drain]. Herewith is a map on which the 
length and depth of said proposed drain [or as the case may be] is de- 
lineated, and that I propose to pay you as a compensation in the premises 
dollars [or as the case may be]. 

Given under my hand, this day of , 18 — . G. H. 

(2) Form of Deed for Bight of Way and Release of Damages. 

This indenture, made this day of , A. D. 18 — , between A. B., 

•of , party of the first part, and C. D., of party of the second 

part. Witnesseth, that: 

The said party of the first part, for and in consideration of the sum of 

dollars, to him in hand paid by said C. D., and the receipt whereof is 

hereby acknowledged, has granted, and by these presents does grant the 
right of way to said C. D., over his lands described as follows: [here des- 
cribe lands,] for the purpose of constructing a drain or ditch on or through 
said lands, [as the case may be, giving the nature of the work in detail, as 
shown in the application,] for the purpose of draining the lands of said C. 
D., an adjoining owner, described as follows: [here describe lands]. And 

the said party of the first part hereby accepts the said sum of dollars, 

above mentioned, in full compensation for such right to construct such 
drain or ditch, [as the case may be,] over or on his said lands. 

In witness whereof, said party of the first part has hereunto set his hand 
and seal, the day and year first above written. 

A. B., [seal.] 

This deed should be acknowledged as other deeds. 



DIV. HI.] OWNER, OR JOINT OWNERS — OUT-FALLS. 237 

occupier, that he will, on a day named, not less than five days 
thereafter, apply to the drainage commissioners to* locate said 
drain or drains (1) 

66. Drainage— Commissioners may act] § 66. Upon the re- 
ceipt of such application, it shall thereupon be the duty of the 
drainage commissioners, at the time mentioned in said notice, to 
go upon the lands and examine the line or lines of the proposed 
ditch or ditches ; and they shall have power to make such altera- 
tion, either in the location or mode of construction, as they may 
deem best, and may form a drainage district embracing such drain 
or drains, and shall enter on their record an order, in writing, or- 
ganizing said drainage district, and such district shall thereupon 
be declared organized. The maps, as finally adopted, shall be 
signed by the commissioners, or a majority of them, and shall be 
recorded in the drainage record. (2) 

(1) Form of Notice to Adjoining Owner of Application to Drainage Com- 
missioners to Locate Drain. 
To A. B.: 

Take notice, that on the day of -, A. D. 18 — , at — o'clock, — M., 

I shall apply to the drainage commissioners of township, county of 

, and State of Illinois, do locate a drain, [or as the case may be,] over 

or through lauds belonging to you, [and occupied by , if such be the 

case,] and described as follows : [here describe lands']. 

Dated this day of , A. D. 18—. 

A. B., adjoining land owner. 

Form of Application to Drainage Commissioners to Locate Drain, 

To the drainage commissioners of township, county, and state 

of Illinois : 

The undersigned, having on the day of— , A. D. 18 — , made ap- 
plication in writing to C. D., adjoining owner of lands described as 
follows, to-wit: [here describe lands,] for leave to construct a drain through 
or on his said lands, [or, for leave to have an existing drain on said lands 
cleared, widened, or otherwise improved,] and said C. D. having refused 
to assent to the application of the applicant, he therefore applies to you to 
locate said drain, [or as the case may be,] and have said lands embracing 
such drain organized as a drainage district. 

Dated this day of , A. D. 18—. A. B. 

(2) Form of Order of Commissioners Organizing Drainage District. 

"Whereas, it appears that application was on the day of , 18 — , 

duly made by G. H. to A. B., an adjoining owner, for the right to open 
and construct a drain [or as the case may be] from lands of said G. H., 
described as follows : [describe the lands], over and upon the lands of the 
said A. B., described as follows: [describe the lands], and that said A. B. 
would not assent to said application. And application being thereupon 

to-wit : on the day of , 18 — , made to theundersigned the drainage 

commissioners of township, in the county of , and State of 

Illinois, to locate said drain, due notice of such application being given 
to said A. B., and said commissioners having at the date last aforesaid 
went upon the lands in question and examined the line of the proposed 
ditch, and being of opinion that the same is necessary and proper, have 



238 DBAINS AND DITCHES. [DIY. HI. 

67. For right of way, and other proceedings.] § 67. The 

further proceedings for procuring right of way, award of damages, 
levy of special assessments for benefits, confirmation of the same 
and other matters, shall be in accordance with the provisions of 
this act, which are applicable thereto. 

68. Fees.] § 68. The commissioners, and clerk, and members 
of boards of appeals shall each receive one and one-half dollars, 
and if a civil engineer shall have been employed not to exceed five 
dollars per day, for the time actually employed in the discharge 
of the duties prescribed by this act ; the compensation to be paid 
by the district for which the service may be rendered. Their ac- 
counts for services shall be rendered under oath and filed with the 
clerk, and kept by him with and among the records of his office. 
The treasurer shall receive, as his compensation, two per cent, of 
the funds collected by him, and one per cent, on the amount paid 
him by the county treasurer. The county treasurer shall be enti- 
titled, as his compensation two per cent, on the amount collected 
by him on delinquent assessments. (1) 

69. Act not affect prior laws.] § 69. This act shall not be con- 
strued to repeal or interfere with the execution and enforcement of 
other laws on the subject of drainage, or levees, and drains, 
passed by this General Assembly. * 

and do hereby order that a drainage district, comprising the lands here- 
inbefore described [or the lands described as follows, to-wit:], be and the 
same is hereby organized, and is declared organized. 
In witness whereof we, said drainage commissioners, have hereto set 

our hands, this day of , 18—. O. P ^ ^ . 

Li M I Drainage 
R. S ' (Commissioners. 

(1) Form of Account Rendered for Services to Drainage District. 

Drainage district No. , of the township of , county of ,and 

State of Illinois, to , Dr. 

To service rendered [here state nature of services']. 

State of Illinois, \ QQ 

County. | ss * 

A. B., being duly sworn on oath, says that the above account by him 
rendered is true and correct as therein stated. A. B. 

{Subscribed and sworn to before me this ) 

day of , A. D. 18—. > 

* Amended, 1881. See Appendix, p. 480. " . " 



DIV. IV.] FENCES. 239 



DIVISION IV. 

FENCES. 

AN ACT to revise the law in relation to fences. [Approved March 21, 1874. In force 
July 1, 1874. Rev. Stat. Ch. 54. J 
Section. 

1. Fence viewers. 

2. What a lawful fence. 

3. Division fence. 

4. When lands inclosed— Contribution. 
6. Value of fence, etc., ascertained. 

6. Neglect to repair or rebuild. 

7. Disputes settled. 

8. Choice of viewers. 

9. Viewing fence— Disagreement. 

10. Decision. 

11. Neglect — Damages. 

12. Making or repairing fence destroyed. 

13. Refusing to make or repair. 

14. Removal of division feoce — Notice. 

15. Removal without notice. 

16. Mistake in locating fence. 

17. When removal may not be made. 

18. Viewers may examine witnesses, etc 

19. Fees— Expenses. 

20. Trespass — Damages. 

21. Damages, damage feasant. 

1. Fence viewers.] § 1. That in townships under township 
organization the town assessor and commissioners of highways 
shall be ex officio fence viewers in their respective towns. In 
counties not under township organization the county board, at 
their annual meeting in December, shall appoint three fence 
viewers in each precinct, who shall hold their office for one year, 
and until their successors are appointed. (1) [L. 1861, p. 221, § 
4; L. 1857, p. 160, § 14. 

2. "What lawful fence.] § 2. Fences four and one-half feet 
high, and in good repair, consisting of rails, timber, boards, stone, 
hedges, or whatever the fence viewers of the town or precinct 
where the same shall lie shall consider equivalent thereto, shall 
\>e deemed legal and sufficient fences. Provided, that in counties 
under township organization the electors at any annual town 
meeting may determine what shall constitute a legal fence in the 
town, and in counties not under township organization the power 
to regulate the height of fences shall be vested in the county 
t>oard.(2) [E. S. 1845, p. 280, § 14 

(1) Tlie duties of fence viewers are chiefly judicial, hence they should not be of kin 
to either party. Sanborn v. Fellows, 22 N. Hamp. R., (2 Fost.), 473. 

(2) A fence is nothing more than a line or obstacle to restrain or exclude animals, or 
to serve as notice of possession, and may be composed of anything and in such manner as to 
answer such purpose. Allen v. Tobias, 77 111. E., 169. 



240 FENCES. [DIY. IV. 

3. Division fence.] § 3. Where two or more persons shall 
have lands adjoining, each of them shall make and maintain a, 
just proportion of the division fence between them, except the 
owner of either of the adjoining lands shall choose to let such 
land lie open: Provided, that where owners of adjoining lands, 
by mutual agreement, have heretofore built, or may hereafter 
build their respective portions of a partition fence, it shall not be 
lawful for either to remove his part of said fence, so long as he 
may crop or use such land for farm purposes, or without giving 
the other party one year's notice in writing, of his intentions to 
move his portion of the fence. (1) [L. 1857, p. 159, § 1. 

(1) A division, fence Tbetween adjoining land owners may be established by 

agreement of the parties, as well as under the statute. D'Arcy v. Miller, 86 111. R., 102. The 
agreement should be reduced to writing, tach party taking a copy, although a parol agreement 
for partition is held to be valid. Guyer v. Stratton, 29 Conn. R., 421. 

"Where two adjoining land owners agreed to divide a partition fence between, 
them, alloting to each a certain part thereof, and such fence is built and repaired by such par- 
ties accordingly, and also by subsequent grantees of one of such owners, the fence will be re- 
garded as a division fence. D'Arcy v. Miller, 86 111. R., 102. 

"Where two adjoining owners build a division, fence with an agreement that each 
should have the portion of the fence he should make, and one of the owners built his fence 
over the line and on the land of the other, who sold his tract to a purchaser who had no notice 
of such agreement, Held, that such purchaser was entitled to the fence. Climer v. Wallace, 2$ 
Mo. R., 556. 

The liability imposed "by statute upon the owners of adjoining land to contribute 
their just share towards the costs, etc. of a division fence is fixed at the time the fence becomes 
a division fence. The grantee of one who has built a division fence does not succeed to the 
rie;ht of his grantor to enforce contribution from ihe adjomg owner. This right, being a mere 
Chose in action, is not the subject of assignment. Hale v. Andrews, lb 111. R., 252. 

The following is suggested as a convenient form of agreement between parties 
tor dividing and maintaining a division fence : 

Form, of Agreement to Divide and Maintain a Division Fence between Ad- 
joining Owners. 

This agreement, made this day of , A. D. one thousand eight 

hundred and , between A. B., of the town of , in the county 

of , and the State of Illinois, of the one part, and C. I)., of the same 

town, of the other part, witnesseth, that whereas the said A. B. has here- 
tofore erected a fence on the division line between his lands and the lands 
of the said C. D., which said fence commences at {describe the location of 
the fennel. And whereas, after the erection of said fence, the said C. D. 

inclosed a field on the east side of said division line, so that rods of 

said fence, commencing at the, etc. [describe the location of said portion 
of the fence], has become and now is a partition fence between the fields 
of the said A. B. and C. D.; and whereas, the said C. D. has paid to the 

said A. B. dollars, being in full for one-half of the value of said 

rods of fence, it is therefore agreed between the parties hereto that the 

rods of fence on the north part of said rods shall be well and suffi- 
ciently maintained and kept in repair by the said A. B., and the remain- 
der of said rods shall be kept in like repair by the said C. D. 

In witness whereof, the said parties have hereunto set their hands and 
seals the day and year first above written. 

A. B. [SEAL.] 

C. D. [SEAL.] 

It is a legal incident attached per se to all lands enclosed and holden in sever- 
alty, running" with them perpetually and unaffected by ulterior divisions and subdivisions, that 
each of the adjoining proprietors shall make and maintain one-half of the division fences. So, 
where a division fence has been apportioned, between adjoining owners, and the land on either 



DIY. IV.] EXAMINATION OF FENCES. 241 

4. When lands inclosed— Contribution.] § 4. When any per- 
son shall have chosen to let his land lie open, if he shall afterward 
inclose the same, or if auy owner of land adjoining upon the in- 
closure of another shall inclose the same upon the inclosure of 
another, he shall refund to the owner of the adjoining lands a just 

side becomes thereafter subdivided, by conveyance, between two or more grantees, they may call 
for a new apportionment or division of such fence, according to this changed condition of own- 
ership. Wright v. Wright, 21 Conn. R., 329. 

The statute does not require that the portion of division fence assigned to each owner should 
be contiguous. Prescott v. Mudgett, 13 Maine R., 423. 

An occupant of land who is bonnd to maintain a fence between his own and an 
adjoining inclosure, may place half of a fence, of reasonable dimensions, on the land of the ad- 
joining owner ; and he may cut half of a ditch on the land of such owner, when a ditch is 
proper for a partition fence. Newell v. Hill, 2 Mete. R., (Mass.) 180. 

It has become a part of the common law of tliis country, that adjoining owners 
of farms may erect crooked or Virginia fences, as division fences, occupying the necessary quan- 
tity of land upon each side of the mathematical line, and that such fence is a fence in contem- 
plation of law, upon the line between the adjoining farms, and is a fence on the side of the farm. 
Ferris v. Van Buskirk, 18 Barb. R., 397. 

If, in the erection of a division fence, more than one-half is built upon the land of 
one of the adjoining owners, without his consent, he may remove the excess; and if, in order to 
effect such removal it becomes necessary to take down the whole fence, he may rightfully do 
so. Sparhawk v. Twichell, 1 Allen R., (Mass.) 450. 

A brash fence, maintained near the line, between the possessions of two adjoiningown- 
ers, but not continued at all times in the same place, is not evidence of an adverse possession, so as 
to bind either party to the line usually occupied by such fence. Smith v. Hosmer, 7 N. Hamp. 
R., 436. 

If there is in fact a division fence, the duty of contribution to maintain it exists, al- 
though the line may be in dispute. Stephens v. Shriver, 25 Pa. St. R., 78. 

Where one of two owners of adjoining lots of land sees the other erect a perma- 
nent fence between their lands, without making any objection, this is evidence of an agreement 
on his part that the fence is erected on the true line. Eato-n v. Rice, 8 N. Hamp. R.. 378. 

It is the intention of the law that only those having inclosed lands adjoining shall be 
required to maintain partition fences between their own and the next adjoining inclosures. If 
at the time the fence viewers act in determining that one of the occupants of adjoining lands 
shall erect and maintain or pay for a part of a division fence, the lands of such party are unin- 
closed, their proceeding are without jurisdiction and void. Bechtel v. Neilson et al., 19 Wis. R.. 49. 
And unless the proceedings are valid, the plaintiff cannot recover under the statute for building 
the defendant's part of the fence. Fairbanks v. Childs, 44 N. Hamp. R , 458. 

Where the owners of two adjoining tracts of land join their fences so as to have 
but one field in common, and no division fences built, it is the business of one to see that the 
fence of the other is sufficient to turn ordinary stock. Stoner et al. v. Shugart, Jr., 45 111. R., 77. 
See Seeley v. Peters, 5 Gilm. R., 130. 

The law in relation to partition fences does not apply to ornamental partition fences 
between city and village lots, but to the ordinary fences of the country, such as are usually built 
on agricultural lands. Brooks v. Allen, 1 Wis. R., 127. 

Where a party- is not bound by prescription, agreement, or assignment of fence 
viewers, to maintain a fence between his land and that of an adjoining owner, he |may sustain 
an action of trespass against the adjoining owner, whose cattle escape into his land - The com- 
mon law on this point is not altered by the statutes. Thayer v. Arnold, 4 Mete. R., (Mass.) 589. 

At common law, the owner of a close was not obliged to fence against the occu- 
pant of an adjoining close. The design of the statute is not to keep the cattle of others off the 
premises, but to keep home the cattle of the occupant. Hurd v. Rutland etc. R. R. Co., 25 Vt. 
R., 116. 

The owner of land adjoining a highway is not bound to erect a fence along such 
highway. The statute applies only to owners of adjoining closes. Chambers v. Matthews, 18 N. J. 
L., (3 Harr.) 368. 

A person is not bound to maintain partition fences against the cattle of another who 
is not an adjoining owner or occupant. Aylesworth v. Herrington, 17 Mich. R. 417. 

The general rale that a party who is the owner of personal property, which is 
upon the land of another, cannot therefore enter to take it away, does not apply to an entry 
necessary to enable a person to make his part of a fence. As the law requires each owner to 
make his portion of the fence, this duty carries with it the right to sxich necessary occupation for 
the time being as is required to enable him to comply. Carpenter v. Halsey, 60 Barb. R., 45. 

The legislature of a State has the constitutional power to regulate, by statute, 
the relative rights and responsibilities of the proprietors of inclosed land and the owners of stock 
going at large or kept in adjacent inclosures. Wills y. Walters,, 5 Bush. (Ky.). 35L 

16 



242 FENCES. [DIY. IV. 

proportion of the value at that time of any division fence that 
shall have been made by such adjoining owner, if the same shall 
be a ditch or hedge, and if the same be not a ditch or hedge, he 
shall immediately build his proportion of such division fence, or 
refund to said adjoining owner a just proportion of the value at 
that time of such fence.(l) [L. 1857, p. 159, § 2. 

5. Talue of fence, etc., ascertained.] § 5. The value of such 
fence, and the proportion thereof to be paid by such person, and 
the proportion of the division fence to be made and maintained 
by him, in case of his inclosing his land, shall be determined by 
two fence viewers of the town, in counties under township organ- 
ization, and in other counties by any two fence viewers of the 
precinct.(2) [L. 1857, p. 159, § 3. 

(1) "Wooded land wliicli has heen used as a su^ar "bush and wood lot, and partly 
cleared but not occupied, is not within the statute exempting from fencing, and land allowed to 
"lie open to a public common." Perkins v. Perkins, 44 Barb. R., 159. 

Tlie right of an owner who lias erected a partition fence to recover the value 
of one-half thereof, against the owner of adjoining land, is complete by the commencement of 
proceedings to have the value of such half ascertained by fence viewers, and cannot be de- 
feated by a sale of the land, and a notice by the purchaser that he does not intend to occupy, 
or improve, or inclose it, subsequent to the application to the fence viewers, and i otice of such 
application by them to the original owner, though previously to any further proceedings by 
them. The liability of the owner or occupant of land, which has lain uninclosed, on inclosing 
or depasturing the same, to pay for the one-half of a partition fence, attaches immediately upon 
such inclosing or depasturing. Field v. Proprietors, etc., 1 Cush. R. (Mass.), 11. 

Where two persons own adjoining closes of improved land, and a partition 
fence has never been divided, or the portion to be kept up by each in any manner ascertr ined, 
neither can impose -upon the other, or claim for himself the protection contemplated by the 
statute regulating fences. Coze v. Bobbins, 9 N. J. L. (4 Hals.), 384. . 

The laws regulating partition fences, party walls, and other like police regulations, 
are an ancient branch of legislation. Their object is to regulate the management and enjoy- 
ment of property by the owners at their common expense, and they are a proper and constitu- 
tional exercise of legislative power. Coster v. Tide Water Co., 18 N J. Eq., 54. 

(2) Fence viewers are made the sole judges in controversies concerning division 
fences, and of the sufficiency of such fences, as well as of all other fences, and are to decide by 
direct examination of the premises. Fox v. Beebe, 24 Conn. R., 271. 

It is held that any person occupying land, and interested in the making and 
maintaining a division fence, be his estate or interest in the premises what it may, is entitled to 
avail himself of the provisions of the statute in reference to division fences; the remedy is not 
limited to the owner of the fee. Bronk v. Becker, 17 Wend. R., 320. 

An appraisal »y fence viewers does not prevent a party from proving by other 
evidence the expense of building the adjoining owner's portion of a division fence, in a suit 
brought to recover the cost of such portion. Perkins v. Perkins, 44 Barb. R., 134. 

Form of Notice to Adjoining Owner to Choose Fence Viewers as to Value 

of Division Fence. 
To A. B. : 

You are hereby notified that you having enclosed your lands adjoining 

inclosed lands belonging to me, in the town of , county of , 

State of Illinois, your land being described as follows: [desc?*ibe the lands 
briefly'], and my said lands being described as follows: [describe lands 
briefly], so that the fence, all of which belongs to me, on the line of my 
said land, is the division fence between that and your land ; that I desire 
to have the value and proportion thereof which you should pay deter- 
mined by the fence viewers of the town aforesaid, and that if you shall 
neglect for eight days after receiving this notice to make choice of a fence 
viewer to act in said matter, I shall thereafter proceed and select both, 
and submit to, them the matter aforesaid. 

Dated this day of , 18—. C. D. 



DIY. IY.] EXAMINATION OF FENCES. 243 

6. Neglect to repair and rebuild.] § 6. If any person neglect 
to repair or rebuild a division fence, or portion thereof, which he 
ought to maintain, any two fence viewers of the town or precinct, 
as the case may be, shall, on complaint by the party aggrieved, 
after giving due notice to each party, examine such fence, and if 
they deem the same to be insufficient, they shall so notify the 
delinquent party, and direct him to repair or rebuild the same 
within such time as they may deem reasonable. (1) 

Form of Determination of Fence Viewers as to Value and Proportion of 

Division Fence. 



County, 



Vss. 



Town of - 

Whereas, it appears to the undersigned, fence viewers of said town of 
•, that L. M. has lately inclosed his lands in said town, described as 



follows : [describe lands briefly'], adjoining the enclosed lands of O. P., so 
that the fence belonging to said O. P. has become the division fence be- 
tween the enclosed lands of said parties,* and said parties having duly 
selected the undersigned fence viewers of said town [or as the case may 
be] to determine the value of such fence and the proportion thereof to be 
paid by said L. M., and the proportion of the same to be maintained by 
him, due notice being given to each party, and having heard the allega- 
tions of the parties, said fence viewers do determine that the value of 

said fence is dollars, that the proportion thereof to be paid by said L. 

M. to said O. P. is dollars, and that the proportion of said division 

fence to be maintained by said L. M., is as follows: [describing the por- 
tion of fence allotted, by distances from point to point, or other convenient 
description]. 

Witness our hands, this day of , 18 — . 

A. B., | Fence 
C. D., /Viewers. 

In case both fence viewers are selected by one party, after notice and neglect of the other 
party to make choice, the foregoing form may be changed by omitting the words, " and said 
parties," at the *, and inserting the following ; 

" Said L. M. having neglected to make choice of fence viewers, after 
due notice, and said O. P. having," etc. 

(1) The complaint to the fence viewers by a party aggrieved is not required to be in 
writing. It will be proper, however, that the notice to the parties by the fence viewers, and 
subsequent proceedings, should be reduced to writing. The proceedings of fence viewers should 
be treated, as to matters of form, with at least the indulgence extended to proceedings before 
justices of the peace; and where it appeared that a party was notified verbally, and bythe^oppo- 
site party, and was present at the meeting of the fence viewers, and made no objection at that 
time, the notice was held sufficient. Talbot v. Blackiege, 22 Iowa E., 57. 

Form of Notice to Adjoining Owner who Neglects to Repair or Rebuild 

Division Fence. 
To A. B. : 

You are hereby notified that you having neglected to repair [or rebuild] 
your proportion of the division fence between our adjoining lands in the 
town of , county of , and State of Illinois, your said lands be- 
ing described as follows: [describe the land briefly], and my said lands 
being described as follows: [describe land briefly], that I desire to submit 
the matter of the sufficiency of said fence and your duty in the premises 
to fence viewers, of the town aforesaid, for their decision ; and that if you 
-shall neglect for eight days after receiving this notice to make choice of a 
fence viewer to act in said matter, I shall thereafter proceed and select 



24:4 FENCES. [div. iy. 

7. Disputes settled.] § 7. If disputes arise between the own- 
ers of adjoining lands, concerning the proportion of fence to be 
made or maintained by either of them, such disputes shall be 
settled by any two of the fence viewers of the town or precinct, 
as the case may be, and in such cases it shall be the duty of the 

both fence viewers for that purpose, and submit to them the matter afore- 
said. 
Dated this day of , 18— C. D. 

Form of Notice to Parties by Two Fence Viewers for Examination of 

Fence. 
To C. D. : 

You are hereby notified that complaint having been made by A. B. to 

the undersigned, fence viewers of the town of , that you have 

neglected to [state what is complained of], and that we shall on the 

day of , 18 — , at the hour of o'clock, — M., proceed and examine 

such fence with a view to such action in the premises as the case shall, 
require. 

Dated this day of , 18 — . L. M., ) Fence 

R. S., ) Viewers. 

Form of Direction by Fence Viewers to Repair or Rebuild Fence. 



County, 



Vss. 



Town of- 

Complaint having been rnade by A. B. to the undersigned, fence view- 
ers of said town of , that [slate the substance of comprint, showing 

the location of the fence], said fence viewers having been duly selected by 
said A. B.* and C. D. to act in said matter [or as the case may be], we did, 
having given due notice thereof to each party in the premises, proceed, 

on the day of , 18 — , and examine such fence, and having heard 

the allegations of the parties did and do deem the same to be insufficient, 
and do direct that [state the direction or order made]. 

Witness our hands, this day of , 18—. 

L. M., ) Fence 
K. S., J Viewers. 

In case both fence viewers are selected by one party, after notice and default by the other, 
change the foregoing form by inserting at the *, in place of the words, " and C. D.," the follow- 
ing: 

"Said C. D. having neglected to make choice of fence viewers, after 
due notice, and said A. B. having selected the undersigned fence viewers. n 

The fence viewers, in their proceeding on the complaint of a person aggrieved* 
would undoubtedly be confined to the subject ofthe complaint. If that related to the repair- 
ing of a fence, they probably would not have authority to assign to the adjoining occupants 
their respective share of the fence, and direct the rebuilding within a specified time. Sears v. 
Charlemovvt, 6 Allen R. (Mass.), 437. 

The application or complaint to the fence viewers may include the whole subject in contro- 
versy ; but before a party can be affected by the acts or decisions of the fence viewers, he must 
have notice. Fairbanks v. Childs, 44 N. Hamp. R., 458. 

A good and sufficient fence must be not merely one which will turn ordinary stock, but 
one that will turn stock even though, to some extent, unruly. C. & A. B. B. Co. v. UUcy, 39 111. 
R., 411. 

The common law rule, requiring the owner of stock to keep it upon his own land 
has been recognized, in some cases, in this State, as governing inside or division fences. Header 
▼. Bust. 39 111. R., 186. 

Where, in a field occupied hy several persons, there is an inner fence, one of the 
occupants ofthe field cannot remove such inner fence at pleasure, though he may be the owner 
thereof, without rendering himself liable to his co-occupant for any damages resulting there- 
from. Nor is it any defense to an action of trespass, growing out of the removal of the inner 
fence, to show that the complaining party was bound to keep the outer fence in repair, or that 
he mig>.t have repaired the same at small expense. Buckmaster y. Cool, 12 111. R., 74. 



DIY. IV. 1 EXAMINATION OF FENCES. 245 



two fence viewers to distinctly mark and define the proportion 
of the fence to be made or maintained by each.(l) [L. 3 857, p. 
159, § 4. 

8. Choice of viewers— Notice.] §8. When any of the above 
mentioned matters shall be submitted to fence viewers, each party 

In an action to recover for the trespasses committed in the field of the plaintiff by 
the hogs of the defendant, it appeared the hogs entered the plaintiff's field through a division 
fence from an adjoining field owned by the defendant, such division fence being owned entirely 
by the plaintiff. Held, the fence was not a partition fence under the statute, hence, the question 
of its sufficiency was not involved. Under such circumstances the rule of the common law 
prevails, that each man is bound to take care of and keep his animals on his own land. McBride 
v. Lynd, 55 111. R., 411. 

If one of the owners of a division fence shall neglect to keep his portion in re- 
repair, the other cannot, without notice to him, select both fence viewers and charge him with 
all the costs of the view. The party not notified will not be bound by the action of the viewers, 
and therefore will not be liable for any expense on their account, Ihompson v, Bulson, 78 111. 
R., 277. 

Held, in New Hampshire, that it is the occupier and not the owner of a close who is bound to 
keep the fences in repair. Tcwksbury v. Buklin 7 N. Hamp. R.. 518. 

Where fence viewers find a divisional fence to be insufficient, their notice to the persons bound 
to repair it need not specify the particulars in which it is defective. Fox v. Beebe, 44 Conn. R , 271. 

(1) Where a dispute arises as to the proportion of a fence to be maintained by each 
party, it may be settled by fence viewers, even where there has been an agreement on the sub- 
ject. Berger v. Kortwright, 4 Johns. R., 414. 

The decision of the fence viewers as to the proportion of fence of each party is not necessary 
where there is no dispute between them. WUlouahby v. Cotton, 9 Johns. R.. 136. 

The fence viewers have authority to determine what portion of a division fence 
shall be paid for or repaired by an adjoining occupant, but over the payment of the same so as- 
certained they have no control. In a suit for monev awarded by fence viewers to be due from 
one adjoining proprietor to another for a partition fence voluntarily built by the latter, evidence 
that he was paid for the same by the person who subsequently conveyed the adjoining premises 
to the former is admissible. Butler v. Barlow, 2 Wis. R., 10. 

It is held that an appraisal "by fence viewers does not prevent a p?rty from 
proving by other evidence the expense of building the adjoining owner's portion of a division 
fence in a suit brought to recover the cost of such portion. Perkins v. Perkins, 44 Barb. R., 134. 

The statute in relation to partition fences authorizes fence viewers to assign distinct por- 
tions of the dividing line to adjoining owners. Any direction beyond this by the viewers is 
simply void, but does not invalidate their acts so far as they had authority. Longly v. Hilton, 34 
Maine R., 332. 

An assignment by fence viewers of only a part of a continuous line of partition 
fence is not for that reason invalid, neither party at the time requesting that the whole line be 
divided. After such assignment duly made, the obligation of the parties are fixed to maintain 
the fence accordingly, and cannot be changed, without cogent by a subsequent view and divis- 
ion by the fence viewers of the whole continuous line of partition fence. Alger v. Pool, 11 Cush. 
R. (Mass.), 450. 

Where the plaintiff in an action to recover the sum awarded to him, by the 
fence viewers, alleged that he and the defendant were owners of enclosed lands, separated by a 
stone wall, which was originally built Dy W., under whom the plaintiff holds, and which in 
consequence of a division of the land in July, 1826, it became the duty of the defendant to unite 
with the plaintiff in dividing, and to pay the plaintiff such sums as should be awarded by the 
fence viewers ; it was held, that the fence viewers, on the plaintiff's application had power and 
right to divide and apportion the fence anew. Wright v. Wright, 21 Conn. R., 329. 

The division of enclosed lands by sale or otherwise, prima facie subjects them to a new divi- 
sion of the partition fence among the new adjoining owners. Wright v. Wright, 21 Conn. R., 329. 

The existence of a dispute about a partition fence is sufficient to enable the fence 
viewers to interpose. Barger v. Kortriglit, 4 Johns. R., 414. 

Where a dispute arises between parties as to the value of division fences, and 
the proportion to be paid to him who has erected the whole fence, the fence viewers of the town 
have jurisdiction of the matter. The decision of the fence viewers in such a case, should be 
reduced to writing and filed in the office of the town clerk, and an action will be to recover the 
sum in the certificate stated to be due. Hewitt v. Watkins, 11 Barb. R., 409 

The notice served, under which fence viewers are selected, is jurisdictional, and 
they cannot, without the express consent of the parties interested, act upon any other or difler- 
■ ent'question than that expressed in the notice, and without notice they cannot be selected to 
act at all. When fence viewers were selected under notice that they were to be selected to 
settle a dispute concerning the proportion of a division fence to be made by each of the parties, 
they will have no power to assess the amount to be paid by one of the parties to the other for a 
portion of a fence already built. Hale v. Andrews, 75 111. R., 252. 



246 FENCES. [div. IV.. 

shall choose one ; and if either neglect, after eight days 5 notice in 
writing, to make such choice, the other party may select both. 
And for all purposes of notice under this act, it shall be sufficient. 
to notify the tenant or person in possession of said adjoining 
premises, when the owner thereof is not a resident of the town in 
which such fences are situated. (1) [L. 1857, p. 159, § 5. 

9. Viewing fence— Disagreement.] § 9. The two fence view- 
ers so chosen shall examine the premises, and hear the allegations 
of the parties. In case of their disagreement, they shall select 

(1) Whilst the words " any of the ahove mentioned matters," occurring in section 8 of this act, 
would seem to have reference only to matters contained in the preceding section, the Supreme 
Court have recently decided that the words have reference to all matters in each preceding sec- 
tion of the act wherever the selection of fence viewers is contemplated, ana that the require- 
ments of section 8 govern in all such cases. Tliompson v. Bulson, 78 111. R., 277. 

This is at best a forced construction of the provisions of the act. It would seem that if the leg- 
islature intended such construction they would have employed some language to that effect iut' 
sections five and six. 

Form of Notice to Adjoining Owner to Choose Fence Viewer to Settle 

Dispute. 
To R. R.: 

Sir: — A dispute having arisen between you and myself, being the own- 
ers of adjoining lands in the town of — , in the county of , and 

State of Illinois, concerning the proportion of division fence to be made [or 
maintained] by each of us upon the line of our said lands, your land in 
question being known as [describe the land with reasonable certainty}, and' 
mine as [describe the land]. I have chosen J. W., one of the fence viewers 
of said town, and do hereby give notice to you to proceed and choose another 
of the fence viewers of said town, to the end that said dispute between us 
may be settled and decided by said fence viewers, and that if you shall 
neglect to make such choice for eight days after receiving this notice, I 
shall make such choice. myself, and proceed to have said matter in dispute 
adjusted by the fence viewers thus chosen by me, the same as if one had 
been chosen by you. 

Yours, etc., J. E. 

Dated, etc. 
Form of Submission of Dispute Between Adjoining Owners to Two Fence 

Viewers. 

To P. S. and J. G., two of the fence viewers of the town of , in the 

county of , and State of Illinois: 

A dispute having arisen between the undersigned, A. W. and B. L., 
owners of adjoining lands in said town of , concerning the propor- 
tion of division fence to be made [or maintained] by each on the line of 
their respective lands, the land of said A. W. being described as follows: 
[describe the land with reasonable certainty,'] and that of the said B. L., 
being described as follows: [describe the land]. The said A. W. has 
therefore chosen you the said P. T., and the said B. L. has chosen you the 

said J. G., as two fence viewers of said town of , to the end that you 

may proceed to settle and decide said matter of dispute ; and the undersign- 
ed do hereby submit said matter of dispute to you the said fence viewers, 
and request that you will proceed according to law, and settle and decide 
the same as shall seem to you just and right. 

Dated this day of , 18—. A. W. 

B. L. 

If one fence viewer should act by agreement of the parties, it is apprehended that hie* 
action and determination would be good and binding. Kellogg v. Brown, 32 Conn. R., 108. 



DIV. IV.] EXAMINATION OF FENCES. 247 

another fence viewer to act with them ; and the decision of any 
two of them shall be final npon the parties to such dispute, and 
upon all parties holding under them. [L. 1857, p. 159, § 6. 

10. Decision.] § 10. The decision of the fence viewers shall 
be reduced to writing; shall contain a description of the fence, 
and of the proportion to be maintained by each, and their decision 
upon any point in dispute between the parties, submitted to them 
as aforesaid ; and shall forthwith be filed in the office of the town 
clerk, or in the office of the county clerk in counties which shall 
not have adopted township organization (1.) [L. 1857, p. 159, § 7. 

(1) Form of Decision of Fence Viewers in Relation to Dispute between Ad- 
joining Owners. 
County, I 

Town of 5 

Whereas, we, the undersigned, two of the fence viewers of said town of 

, having been chosen by R. V. and J. J., owners of adjoining 

lands in said town, for the purpose of settling and deciding a dispute 
which has arisen between them concerning the proportion of division 
fence to be made [or maintained] by each of them, on the line between 
their said lands, the lands in question being described as follows: [describe 

the land of each], and the said R. V. and J. J. having, on the day of 

, 18 — . submitted the said matter in dispute to us, for our settlement 

and decision, we did, on the day of , 18 — , proceed and ex- 
amine the premises, and hear the allegations of the parties. The said 
fence we find to be a rail fence, commonly called a Virginia or worm fence, 
running north and south, in length one hundred and sixty rods, and being 
the division fence between the lands above described, that the same was 
originally erected jointly by the parties, and divided equally between them, 
the said J. J. taking the south half thereof for his portion, by agreement, 
and that the said J. J. now neglects and refuses to keep his portion of the 
same in proper repair [or as the case may be]. We do, therefore, adjudge 
and determine that [conclude with the determination of the fence viewers 
according to the fact]. 

Given under our hands, this day of , A. D. 18—. 

L. P.,) Fence 



J. R., / Viewers. 

Form of Decision of Fence Viewers, where two cannot agree, and another 

is selected. 



County, 



JS8. 



Town of 

A dispute having arisen between A. B. and C. D., two owners of adjoin- 
ing lands in said town of , concerning the proportion of division 

fence to be made [or maintained] by each of them on the line of their said 
lands, the land of the said A. B. being described as follows: [describe the 
land or field in question], and the lands of said C. D. being described as 

follows: [describe the land or field], the said parties did, ou the day 

of , 18 — , submit the said matter in dispute to the undersigned W. S. 

and N. W., two of the fence viewers of said town of , for their settle- 
ment and decision, the said parties having chosen said fence viewers for 

that purpose, the said fence viewers did, therefore, on the day of 

, 18 — , proceed and examine the premises and hear the allegations 

and proofs of the parties, and the said two fence viewers, being unable to 
agree in the premises, did select N. P., another fence viewer of said town, 



248 PENOES. [DIY. IV. 

11. Neglect— Damages.] § 11. If any person who is liable to 
contribute to the erection or reparation of a division fence shall 
neglect or refuse to make or repair his proportion of such fence, 
the party injured, after giving sixty days' notice, in writing, that a 
new fence should be erected, or ten days' notice in writing, that the 
reparation of such fence is necessary, may make or repair the same 
at the expense of the party so neglecting or refusing, to be recov- 
ered from him, with costs of suit ; and the party so neglecting or 
refusing, after notice in writing, shall be liable to the party injured 
for all damages which shall thereby accrue, to be determined by 
any two fence viewers selected as above provided ; and the fence 
viewers shall reduce their appraisement of damages to writing, and 
sign the same.(l) [L. 1857, p. 160, §8. 

to act with them in making such settlement and decision ; and we, the 
undersigned, being now fully advised in the premises, do adjudge and de- 
termine that [conclude according to the determination of the viewers']. 

Given under our hands, this day of , 18 — . 

W. S., 



N. W 



:;} 



Fence 
Viewers. 



N. P. 

If a part of a division fence be assigned, to one to keep in repair, it is his property, so fai 
at least that the removal of it, for lawful purposes cannot make him a trespasser. Burrell v. 
BurreU, 11 Mass. R., 294. 

A decision of fence viewers requiring the occupant of nninclosed land to erect 
maintain, or pay for part of a division fence, is void. The occupants of such lands are under no 
obligation to erect fences. BecJUel v. Neilson, 19 Wis. R., 49. 

The proceedings of fence viewers, as to matters of form, should be treated with 
at least the indulgence extended to proceedings before justices of the peace. Talbot v. Blacklege, 
22 Iowa R , 572. 

Fence viewers have no authority to determine the rights of different claim- 
ants of land, or to establish disputed boundaries, and neither party is precluded, by their 
decision, from contesting the question of ownership in himself, or in the adverse party, or the 
location of their boundaries. Shaw t. Q-ilflllan, 22 Vt. R., 565. 

A certificate of fence viewers adjudging where parties should set their partition 
fence, is not evidence of the title of those parties. Corlis y. Little, 13 N. J. L. (1 Green.), 229. 

(1) Form of Notice to Adjoining Owner to Contribute to Erection or Repar- 
ation of Division Fence. 
To S. R: 

Sir: You are hereby notified to repair [or as the case may be] uiao por- 
tion of the division fence on the line between your land and mine, situate 

in the town of , and county of , according to the decision of J. 

Li. and J. H., two of the fence viewers of said town, made on the day 

of , 18 — , and filed in the office of the town clerk of said town, on 

the day of , 18—, and that if you shall neglect to repair the 

same, agreeably to said decision, for the period of ten days from the date 
of receiving this notice, I shall proceed myself and repair said fence at 
your expense. 

Dated this - — day of , A. D. 18—. L. N. 

Form of Appraisal of Damages by Fence Viewers, Accruing to Adjoining 
Owner, by Reason of Neglect to Make or Repair Fences. 



County, 



Town of 



.} 



Whereas, we, the undersigned, two of the fence viewers of the said town 
of , having been chosen by P. B. and J. S., owners of adjoining lands 



DIV. IV.] LIABILITY FOR DAMAGES. 249 

12. Making and repairing fences destroyed.] § 12. Whenever a 
division fence shall be injured or destroyed by fire, floods or other 
casualty, the person bound to make and repair such fence, or any 
part thereof, shall make or repair the same, or his just proportion 
thereof, within ten days after he shall be thereto required by any 
person interested therein — such requisition to be in writing, and 
signed by the party making the same.(l) [L. 1857, p. 160, § 11. 

13. Refusing to make or repair.] § 13. If such person shall 
neglect or refuse to make or repair his proportion of such fence for 
the period of ten days after such request, the party injured may make 
•or repair the same at the expense of the party so refusing or neglect- 
ing, to be recovered with costs of suit. (2) [L. 185.7, p. 160, § 12. 

14:. Removal of division fence.] § 14. If any person is dis- 
posed to remove a division fence, or part thereof, owned by him, 



in said town, for the purpose of appraising the damages claimed by the 
said P. B., and accruing to him in consequence of the neglect of the said 
J. S. to repair [or as the case may be] his proportion of a division fence 
mentioned and described in a certain decision made by [state by whom, 
made, or if the fence has been divided by agreement, state that fact, and 

vary the form accordingly], on the day of , 18 — , and reduced to 

writing, and filed in the office of the town clerk of said town of . 

We did, on the day of , 18—, proceed to examine the premises ; 

and after due inquiry and examination by us made, and having heard the 
allegations of the parties, we do determine that the said P. B. has sustained 
damages to his land, crops, fruit trees and shrubbery [or as the case may 
■be] in consequence of the neglect of the said J. S. to repair [or as the case 
may be] his proportion of the division fence, as aforesaid ; which damages 

we have ascertained, and do appraise at dollars. 

Witness our hands, this day of , A. D., 18 — . 

P. S., \ Fence 
R. B., j Viewers. 

Parol proof of the fact that written notice to repair was given, is sufficient for the 
^purpose of showing notice. Willougliby v. Carleton, 9 Johns. R., 136. 

(1 )Form of Notice to Make or Repair Fence Injured by Fire, Flood, eto. 

To A. B. : 

Sir :— I do hereby require you to repair that p6rtion of the division 

fence on the line between our adjoining lands in the town of , and 

county of , which you are bound to repair, to-wit: [describe the fence 

in question]. Should you neglect to repair said fence for the period of 
ten days from the date of receiving this notice, I shall proceed myself to 
repair the same at your expense. 

Dated this day of , A. D. 18—. N. T. 

Appraisal by fence viewers of damages in case of neglect or refusal to make or 
maintain division fence would embrace injuries such as treading down grass, corn, wheat and 
other crops, the extent of winch maybe ascertained on view, but would not extend to damages 
for death of cattle from over eating grain, in the fields of a party who has neglected to keep 
his proportion of the division fence in repair. Clark v. Brown, 18 Wend. R., 213. The appraisal 
if properly made would probably be conclusive. Harriman v. Fifield, 36 Vt. R., 341. 

.(2) The law does not require such request, under the above section, to be in writing. 



250 FENCES. DIY. IV. J 

and suffer his lands to lie open, after having first given the adjoin- 
ing owner one year's notice, in writing, of his intention so to do,, 
he may, at any time thereafter, remove the same, unless such ad- 
joining owner shall previously cause the value of said fence to be 
ascertained by fence viewers, selected as hereinbefore provided, 
and pay or tender the same to such person. (1.) [L. 1857, p.160, § 9. 

15. Removal without notice.] § 15. If any such fence shall 
be removed without such notice, the party removing the same 
shall pay to the party injured all such damages as he may thereby 
sustain, to be recovered with costs of suit. (2) [L. 1857, p. 160, 
§10. 

16. Mistake in locating fence.] § 16. When a person has made 
a fence on an inclosure which afterwards on making division lines 
is found to be on the land of another, and the same has occurred 
through mistake, such first person may enter on the land of the 
other and remove his fence and material within six months after 
such line has been run.(3) [E. S. 1845, p. 281, § 19. 

17. When removal may not be made. § 17. But such fence 
shall not be removed if it was made of material taken from the 
land on which it is built, until the party pays or tenders to the 

(1) Foira of Notice by Adjoining Owner of his Intention to Remove his 

Share of Partition Fence. 
To H. H. : 

Sir : — You will take notice that I intend to remove my portion of the 
division fence on the line of our adjoing lands [describe the location of 
the fence with reasonable certainty~], that my said lands may hereafter lie 
open, and that I shall remove the same after the expiration of one year 
from the date of your receiving this notice. 

Dated this day of -, A. D. 18— J. G. 

If an existing fence is a partition fence by agreement, by acquiescense or under the 
statute, it cannot be removed by either owner or occupier until the other has sufficient notice. 
McCormick v. Tate, 20 111. R., 3:54. 

Where a party removes a partition fence wrongfully, and his stock enters upon 
another's premises, he will be liable. Sloner et al. v. Shugart, Jr., 45 111. R., 77. 

One who sows his crop after the fence has been taken down, which protects 
one side of his land, cannot recover damages of the wrongdoer, for injury to his crop, by the 
entry of cattle on it. He was bound to use reasonable prudence in planting his crop. Hassa v. 
Junger, 15 Wis. R., 598. 

Proprietors of adjoining lands are not under legal obligation to perpetually 
maintain division fences with each other. It is a matter of convenience between the parties, 
which either may at his pleasure terminate by giving the statutory notice. Hoag v.Switzer et dL 
61 111. R.. 294. 

(2) Where a party removes a division fence without having previously given the re- 
quired notice, the party injured thereby is not limited to a suit for the recovery of actual dam- 
ages sustained in consequence of such removal, but may make the fence anew and recover the 
expense thereof by action. 

If actual damages are sustained, as the loss of a crop for Instance, caused by the re- 
moval of the fence, an action for the recovery of such damages, as well as a suit to recover the- 
expense of making the fence may be sustained. Richardson v. McDougall, 11 Wend. R., 46. 

(3) The law giving the right to remove fences made by mistake upon the lands- 
of other persons, applies only to natural persons; it has no relation to a case where a fence is- 
erected by mistake upon the lands of the United States or of this State. Blair v. Wbrley, 1 Scam.. 
R., 179. 



DIV. IV.] REMOVAL OF FENCES. 251 

owner of the land the value of such material, to be ascertained 
by the fence viewers ; nor shall a fence be removed at a time 
when the removal will throw open or expose the crops of the 
other party, but it shall be removed within a reasonable time 
after the crops are secured, although the six months above speci- 
fied have passed. 

18. Yiewers may examine witnesses, etc.] § 18. Fence view- 
ers may examine witnesses on any and all questions submit- 
ted to them, and either of such fence viewers shall have power 
to issue subpoenas for, and administer oaths to such witnesses. (1) 
[L. 1857, p. 160, § 13. 

19. Fees.] § 19. Fence viewers shall be entitled to one dollar 
and fifty cents per day, each, for the time necessarily spent as 
above provided , to be paid in the first instance by the party re- 
quiring the services ; and all expenses of the view shall be borne^ 
equally between the parties, except in case of view to appraise 
damages for neglect or refusal to make or maintain a just pro- 
portion of a division fence, in which case the costs of view shall 
be paid by the party in default, and may be recovered as part of 
the damages assessed.(2) [L. 1857, p. 160, § 15. 

20. Trespass— Damages.] § 20. If any horse, mule or ass, or 
any neat cattle, hogs or sheep, or other domestic animals, shall 
break into any person's inclosure, the fence being good and suf- 
ficient, the owner of such animal or animals shall be liable, in an 
action of trespass, to make good all damages to the owner or 
occupier of the inclosure. This section shall not be construed 
to require such fence, in order to maintain an action for injuries 
done by animals running at large contrary to law.(3) [R. S. 
1845, p. 281, § 15. 

(1) Form of Subpoena for Witness by Fence Viewers. 
State of Illinois, > oa 

County, 5 

The People of the State of Illinois to [name of witness] : 

You are hereby commanded to appear before L. M. and R. 8., fence 

viewers of the town of , in said county, at [state the place], on the 

day of , 18 — , at o'clock, — M., to testify and the truth to 

speak in a matter pending before said fence viewers, between A. B. and 
C. D., concerning [state briefly the matter in controversy]. 

In witness whereof the said fence viewers have hereunto set their hands 

this day of , 18— L. M., \ Fence 

R. S. / Viewers. 

(2) In an aetion of assumpsit »y a land owner against his neighbor, to recover the- 
latter's portion of money paid to fence viewers, held, that, to support the action, it must appear 
that the division had been made on the representation of one or both the parties; that one of 
them had refused to pay the part awarded him to pay, and that the division had been made on. 
the true line between them. Gallup v. Mulvah, 24 N. Hamp. R. (4 Fost.), 204. 

(3) In order to maintain an action for the trespass of stock upon one's inclo- 
sure, whereby damage is sustained, the owner of the inclosure must have maintained a good 



252 FENCES. [DIY. IV. 

21. Damages feasant — Rescue.] § 21. If any such animal or 
animals shall break into an inclosnre surrounded by a fence of 
the height and sufficiency prescribed by this act, or shall be 
wrongfully upon the premises of another, the owner or occupier 
of such inclosure or premises may take into possession such an- 
imal or animals trespassing, and keep the same until damages, 
with reasonable charges for keeping and feeding, and all costs of 
suit be paid, to be recovered in any court of competent jurisdic- 
tion ; and any person who shall take or rescue any such animal 
so taken up from the possession of the taker-up without his con- 
sent, shall be liable to a fine of not less than three nor more than 
five dollars for each of such animals so rescued, to be recovered 
on complaint before any justice of the peace of the county where 
such offense shall be committed, for the use of the school fund 
of the proper county : Provided, that within twenty-four hours 
after taking such animal into his possession, he shall give notice 
to the owner thereof, if known, or if unknown, he shall post no- 
tices at some public place near the premises.(l) 

and sufficient fence about it. Headen v. Rust, 39 111. R., 186. This decision is understood to ap- 
ply only in cases where animals are allowed to run at large. 

In an action for trespass, committed by defendant's cattle upon the plaintiff's 
land, the defence was. that the cattle entered from the adjoining field of the defendant, through 
the plaintiff s insufficient fence. Held, that the plaintiff might show that such cattle were un- 
ruly, which would repel the defence. Bamum v. VanDusen, 16 Conn. R., 200. 

Where it appeared that the injury complained of in an action of trespass for 
damages done to the plaintiff's land by defendant's cattle, resulted from the want of a sufficient 
fence between the adjoining lands of the plaintiff and defendant, that it was the duty of each 
of the owners of these lands to make and maintain one-half of the divisional lence, and that 
the plaintiff had never made his part, or taken any measures toward it. Held, that the plaintiff 
was not entitled to a recovery. Studwell v. Rich, 14 Conn. R. 292. 

"Where A's sheep escaped from his land into B's land, through the insufficiency 
of a fence which B. was bound to repair, and thence passed into another adjoining lot of B. 
which was surrounded by a sufficient ienee, and committed damage, Held, that B. could not 
maintain trespass therefor against A. Page v. Olcott, 13 N. Hamp. R., 399. 

Where stock break through defendant's poition of a division fence which is 
defective plaintiff can recover although his portion of the fence may also be out of repair. 
Ozburn v. Adams, 70 111. R., 291. 

"What is a good and sufficient fence Is a question for the jury to determine from 
the evidence. 

An action for the trespass of cattle may be maintained if the fence is good and sufficient, 
whatever may be its height. Scott v. Wirshing, 64 Ilh R., 102. 

No one is obliged to fence against animals fere naturae, (wild by nature,) but the 
owner of such animals must keep them at his peril, and he is liable for damages done by them 
on another's land whether fenced or not. Cane/ox v. Crenshaw, 24 Mo. R., 556. 

(1) The notice to the owner of animals trespassing on the land of another, where the owner 
is known, is not required to be in writing. It may be given verbally. The following may be 
the form of the notice for posting when the owner is unknown, and which may be used when 
the owner is known if desired to give written notice : 

Form of Notice to Owner of Animals Found Trespassing on the Land of 

Another, to be Posted. 
To the owner of the animals herein described : 

You, said owner, are hereby notified that on the day of , 18—, 

three certain cows entered wrongfully upon my premises [or as the case 

may be], in the town of , in the county of , State of Illinois, 

and that I then and there took the same into my possession, at my resi- 
dence at [give place of residence with reasonable certainty], where 



DIV. IV.] FENCING RAILROADS. 25£ 



FENCING EAILEOADS— CKOSSINGS.(l) 

Part of AN ACT In relation to fencing and operating railroads. [Approved March 31, 1874. In 

force July 1, 1874.] 
Section. 

•1. Fencing track. 

1£. Right of way clear of combustibles. 

2. Allowing, etc., animals on right of way — Breaking fence, etc. 

3. Where company neglects to build — Notice. 

4. Adjoining owner may build and recover. 

5. Roads at crossings. 

6. Bell and whistle — Crossings. 

6 J. Killing stock — Frightening team. 

7. Starting train without signal. 

8. Approaches at crossings. 

9. Neglect to make, etc., crossings — Notice. 

10. When company neglects, authorities to construct, etc. 

11. Company to pay expenses and $100. 
14. Not to obstruct highway. 

35. Flagman — Shelter. 

36. Penalties. 

37. Corporation defend. 

38. Street railroads. 

1. Fencing track.] § 1. That every railroad corporation, shall, 
within six months after any part of its line is open for use, erect 
and thereafter maintain fences on both sides of its road, or so 
much thereof as is open for use, suitable and sufficient to prevent 
cattle, horses, sheep, hogs or other stock from getting on such 
railroad (except at the crossings of public roads and highways, 
and within the limits of cities and incorporated towns and vil- 
lages,) with gates or bars, at the farm crossings of such railroad, 
which farm crossings shall be constructed by such corporation 
when and where the same may become necessary, for the use of 
the proprietors of the lands adjoining such railroad ; and shall 
also construct, where the same has not already been done, and 
thereafter maintain at all road crossings now existing, or hereafter 
established cattle guards, suitable and sufficient to prevent cattle, 
horses, sheep, hogs and other stock from getting on such railroad ; 

they still remain, and are held by virtue of the statute in such cases made 
and provided. Said cows are described as follows: One a red cow [giv- 
ing description], one a white cow, [giving desciHption], and the other a 
black cow [giving discription]. 
Dated this day of , 18—. A. B. 

Where two persons own land adjoining each other, and join fences, each build- 
ing the fence on his own land, and have no partition fence between them, and cattle break 
through the defective fence of one and enter the premises of the other, the latter would have 
no right to take them up or recover for injuries against the owner of the *tock. Stoner et at. v. 
Shugart, Jr., 45 111, R., 77. See Buckmader v. Cool, 12 111. R., 76, and McCormick v. Tale, 20 111. 
R., 334. 

(1) So much of the above act only is Inserted here as seems to have any connection 
with affairs under township organization, or duties of town officers. That portion which relates 
to public roads and highways concerns the commissioners of highways of the town. 



254 FENCES. [DIV. IV. 

and when such fences or cattle guards are not made as aforesaid, 
or when such fences or cattle guards are not kept in good repair, 
such railroad corporations shall be liable for all damages which 
may be done by the agents, engines or cars of such corporation, 
to such cattle, horses, sheep, hogs or other stock thereon ; but 
when such fences and guards have been duly made and kept in 
good repair, such railroad corporation shall not be liable for any 
such damages, unless negligently or willfully done.(l) [L. 1855, p. 
173, § 1. [As amended by act, approved May 23, 1877. 



(1) The law prohibiting domestic animals from running; at large, in force Oc- 
tober 1, 1872, does not by implication repeal or nullify any of the provisions of the act requiring 
railroad companies to fence their roads, and the same is true with regard to the law preventing 
male animals from running at large. R. R. I. & St. Louis R. R. Co. v. Irish, 72 111. R., 404. 

The obligation of a railroad company to fence its line of road does not attach 
until it has been in operation six months, and where the company has not been in operation 
six months, but had constructed a fence, it is under no obligation to keep it in repair, the duty 
not having attached. Toledo, Peoria & Warsaw R. R. Co. v. Miller, 45 111, K., 42. The companies 
are liable, under the statute, if they fail to fence within six month after they begin to run trains 
on the track for construction purposes. R. R. & St. L. R. R. Co. v. Heflin, 65 111. R , 366. 

Where a railroad company fails to fence its track, as required by the statute, it 
must see that its servants so conduct its trains that injury shall not result to stock that may get 
upon its track, if it can be avoided by care and caution. In failing to fence, it takes the hazard, 
and when injury results therefrom, it must be required to respond in damages. Toledo, Peoria 
■ & Warsaw R. R. Co. v. Levery, 71 111. R., 522. 

"Where a railroad company, whose road has not been in opera i ion six months 
and is not fenced, its only ground of liability for injury to stock will be that the injury might 
have been avoided by the exercise of ordinary care and prudence, and its servants in charge 
failed to exercise such care and prudence. The Oilman, Clinton & S. R. Co. v. Spencer, 76 111. 
R„ 192. 

"Where a railroad company fails to fence its track as required by law, or has 
•erected an insufficient fence, or failed to maintain a fence, it is liable for all damages resulting 
from such omissions of duty, and this without any reference to the manner in which its engines 
may have been controlled. St. Louis, Alton & Terre Haute R. R. Co. v. Linder et al., 49 111. R., 433 ; 
Same v. Todd, 36 111. R., 409. 

The question of the obligation of a railroad company to fence their road at a par- 
ticular place is one of law, not of fact, and should not be left to a jury to decide. Illinois Central 
R. R. Co. v. Whalen, 42 111. R., 396. 

In cases where a railroad company are not bound to fence their road, or where 
others are equally bound to fence, they are nevertheless bound to use ordinary care in running 
their trains to prevent the injuring of stock. They would be liable lor injuries in case of gross 
negligence in this regard. Headen v. Rust, 39 111. R., 186; St. Louis, Alton & Terre Haute R. R. Co. 
v. Linder et al., 39 111. R„ 433. 

Where an accident is attributable to a defective fence, which it was the duty of 
the company to provide, if the company has failed to erect a suitable fence, negligence is in- 
-ferred; but where they have performed this duty, then negligence must be proved as inordinary 
cases. Illinois Central R. R. Co. v. Whalen, 42 111. R., 396. 

The necessity of fencing a railroad at a given point is not obviated by there being 
an embankment at that place from twelve to twenty feet in height, it not appearing that the em- 
bankment was sufficient to prevent stock from getting upon the track. Toledo, Peoria & Warsaw 
R. R. Co. v. Sweeney, 41 111. R., 226. 

A railroad company are not reqviired to fence their track upon their depot grounds 
in a town. G. & C. U. R. R. Co. v. Griffin, 31 111. R., 303. 

A railroad company is not bound to fence its trade or make cattle guards within 
the limits of a village, and a place where there is a station house, a warehouse, a store, a black- 
smith shop, a post office, and five or six dwelling houses, comes fully up to the requirements of 
a village for the purpose of excusing a railroad company from fencing its track within the limits 
thereof. Toledo, W. W.R'y Co. v. Spavgler, 71 111. R., 568. 

Railroad companies are not required by the statute to fence their line of road within the cor- 
porate limits of a town, and in actions against them to recover for injuries to stock, occurring 
within such limits, it is error to refuse so to instruct the jury. Chicago & Alton R. R. Co. v. Engle, 
58 111. R., 381. But if railroad companies construct cattle guards within the limits of towns, they 
should keep them in repair. C. & R. I. R. R. Co. v. Reid, 24 111. R., 144. 

The necessity for a fence where the contrary is alleged, in case of injury, is shown by proof 
that the cattle were upon the track. Toledo, Peoria & Warsaw R. R. Co. v. Sweeney, 41 111. R., 226. 



DIV. IV.] FENCING RAILROADS. 255 

1J. Right of way clear of combustibles.] § 1J. It shall be 
the duty of all railroad corporations to keep their right of way 

The fence must "be suitable and sufficient, so as to turn stock, even though to some 
extent unruly. C. & A. R. R. Co. v. Utley, 38 111. R., 410. 

If a railway company neglects to comply with, the statute, and an injury to an 
animal occurs, which is fairly attributable to such neglect, the mere fact that the animal is at 
large, if so at large in violation of no general or local law, will not relieve the company of its 
liability, even though the animal may; go upon the track from uninclosed lots adjacent to the 
crossing, and is not standing, when injured, on the actual intersection of the railway and the 
highway. Toledo, Wabash & Western R. R. Co. v. Furgusson, 42 III. R., 449. See, also, C. B. & Q. 
R. R. Co. v. Kauffman, 38 111. R., 425. 

The owner of a horse -who voluntarily permitted the same to run at large con- 
trary to the law in force in the county, cannot recover of a railway company for the killing of 
the same, on the ground that such railway company has failed to fence its track at the place 
where the animal was killed. The railroad company in such case will not be relieved of its 
duty to observe reasonable precaution to prevent injury. The Peoria, etc. R. R. Co. v. Champ., 75 
111. R,578. 

No contributory negligence is chargeable to the owner of stock, where it 
breaks out of its pasture without his fault. The damages for stock killed through negligence 
merely, as a neglect to fence the track, is compensatory only. To authorize more, circumstan- 
ces of agravation must be shown. T. P. & W. R. Co. v. Johnson, 74 111. R., 83. 

"Where a railroad company fails to fence its track, as required by law, it is suffi- 
cient, to fix its liability, if the plaintiff's stock, in consequence thereof, and without any con- 
tributory negligence on his part goes upon the track of the railroad, and is there killed or in- 
jured by the company's locomotive or train. The fact that the owner of stock permits it to run 
at large, in violation of the act prohibiting domestic animals running at large, does not relieve 
the railroad companies from their duty of fencing their roads, or their liability for stock injured 
in consequence thereof. Ewing v. C. & A. R. R. Co., 72 111. R., 25. 

Although a plaintiff may be guilty of negligence in permitting animals at 
large getting upon a railroad track, it is still the duty of the railroad company to use ordinary 
skill and prudence to avoid doing them injury, and failing in this, it is liable. R. R. I. & St. L. 
R. Co. v. Irish, 72 111. R., 405. 

A verbal agreement between a property owner through whose field a railroad passed and 
the railroad company, that if the company would erect certain cattle guards they need not fence 
the sides of their road, and he would not claim damage for injury done by the road to his stock 
getting thereon from the field, does not pass to or bind his grantee of the premises. St. L., A. <Sc 
T. H. R. R. Co. v. Todd, 36 111. R., 409. 

Where cattle are injured upon a railroad at a place where the company are required by 
law to fence the road, and it has been in operation several years without that having been done, 
the company are liable for the damages resulting from such neglect of duty. Toledo, Peoria & 
Warsaw Railway Co. v. Wickery, 4 111 R., 76. 

A railroad company passing through a common field, at which there was a cross- 
ing at the railroad track inside the inclosure used principally by the parties residing therein, it 
was held, that such crossing was not a public crossing, that it was the duty of the railroad com- 
pany to place bars or gates there, and if it failed to do so, it would be liable for any injury to 
stock by its trains. Peoria, Pekin & Jacksonville R. Co. v. Barton, 80 111. R., 72. 

Where stock is killed by a railroad at a place where no fence is required by law, 
to recover it must be proven that the killing of the stock was caused through the negligence of 
the company. I. C. R. R. Co. v. Bull, 72 111. R., 537. 

Where two railroad companies are using the same line of road, one company 
being the owner, and the other using the road by its permission, the company owning the 
track is liable tor damages done, by reason of an unfenced track, by the trains of the other 
company, the same as if done by its own trains, and the company committing the injury will 
also be liable. Toledo, Peoria & Warsaw Railway Co. v. Rumbold, 40 111. R., 143; Illinois Central 
R. R. Co. v. Kanouse, 39 111. R., 272 ; East St. L. &c. Co. v. Gerber, 82 111. R.. 632. 

In the absence of proof of negligence, a railroad company is not liable for the killing 
of cattle which had strayed on to its track at a common or public road crossing. Logansport, 
Peoria & Burlington R. R. Co. v. Caldwell, 38 Iil. R., 280. 

"Where stock get upon a railroad track without the fault of the company, the 
law requires evidence beyond the mere proof that they were injured bv the engine and car- 
riages of the company on the road, to establish a liability for such injuries; there must, in such 
case, be proof of negligence on the part of the agents and servants of the company in charge of 
the train at the time the injury occurred. Chicago & Northwestern Railway Co. y.'Barrie, 55 IIL 
R., 226. 

Railroad companies are liable for killing mules and asses, these animals being in- 
cluded m the term " cattle and horses." Ohio & Mississippi R. R. Co. v. Brubaker, 47 111. R, 462. 

"When a fence along a railroad has been sufficient, and from accident or wrong, 
over which the company had no control, it becomes insufficient to turn stock, they have a rea- 
sonable time withm which to repair it. It is not required that the company should have a 



256 FENCES. [DIV. IT. 

clear from all dead grass, dry weeds or other dangerous or com- 
bustible material ; and for neglect, shall be liable to the penalties 
named in section one.(l) 

2. Allowing, etc., animal on right of way— Breaking fence, etc.] 

§ 2. If any person shall ride, lead or drive any horse or other 
animal upon the track or lands of such railroad corporation, and 
within such fences or guards (except to cross at farm or road 
crossings,) without the consent of the corporation ; or shall tear 
down or otherwise render insufficient to exclude stock, any part 
of such fence, guards, gates or bars — or shall leave the gates or 
bars at farm crossings, open or down — or shall leave horses or 
other animals standing upon farm or road crossings, he shall be 
liable to a penalty of not less than $10, nor more than $100, to 
be recovered in an action of debt, before any court having com- 
petent jurisdiction thereof, in the name of such railroad corpora- 
tion, and for the use of the school fund in the county, and shall 
pay ail damages which shall be sustained thereby to the party 
aggrieved. [L. 1855, p. 174, § 3. 

3. When company neglects to build— Notice.] § 3. When- 
ever a railroad corporation shall neglect or refuse to build or re- 
pair such fence, gates, bars or farm crossings, as provided in thia 
act, the owner or occupant of the lands adjoining such railroad, 
or over or through which the railroad track is or may be laid, 
may give notice, in writing, to such corporation, or the lessees 
thereof, or the persons operating such railroad, to build such 
fence, gate, bars or farm crossings within thirty days (or repair 
said fence, gate, bars or farm crossings, as the case may be, 
within ten days,) after the service of said notice. Such notice 
shall describe the lands on which said fence, gates, bars or farm 
crossings are required to be built or repaired. Service of such 
notice may be made by delivering the same to any station agent 
of said railroad corporation or the persons operating such rail- 
road.(2) [L. 1869, p. 315, § 1. 

patrol at all times, night and day, passing along their road to see the condition of the fence. If 
this is done daily, and thej shall at once, when informed of its insufficiency, make the neces- 
sary repairs, they should not be held liable for injuries resulting from its temporary insufficient 
condition. The company must be held to a high degree of diligence, but not to an impossible- 
or unreasonable extent. Illinois Central E. E. Co. v. Sv earingen, 47 111. E., 206. 

(1) Wlaere a railroad company suffered a heavy growth, of dry grass to remain 
on its right of way through a party's premises, and fire was communicated from the loconioth e of 
a freight train, to the grass and weeds on the way and from thence communicated to the fences- 
and grass of the plaintiff, which was destroyed, Held, that the company was guilty of negli- 
gence, and the plaintiff entitled to recover. E. E. I. & St. L. E. E. Co. v. Eogers, 62 111. R., 346. 

(2) Form of Notice to Railroad Company to Build or Repair Fence, etc. 

To the Railroad Co. : 

You are hereby notified that I require you to build [or repair] the fence 
along the line of your road on the following described land adjoining your 
said road, of which I am the owner [or occupant], to-wit: [describe the 



DIV. IV.] RAILROAD CROSSINGS. 257 

4. Adjoining owner may build and recover.] § 4 If the party 
so notified shall refuse to build or repair such fence, gates, bars 
or farm crossings, in accordance with the provisions of this act, 
the owner or occupant of the land required to be fenced shall 
have the right to enter upon the land and track of said railroad 
company, and may build or repair such fence, gates, bars or farm 
crossings, as the case may be, and the person so building or re- 
pairing such fence, gates, bars or farm crossings, shall be entitled 
to double the value thereof from such corporation or party actu- 
ally occupying or using such railroad, to be recovered with inter- 
est at one per cent, per month, as damages, from the time such 
fence, gates, bars or farm crossings were built or repaired in any 
court of competent jurisdiction, together with costs, to be taxed 
by the court. 

5. Boards at crossings.] § 5. Every railroad corporation shall 
cause boards, well supported by posts or otherwise, to be placed 
and constantly maintained upon each public road or street where 
the same is crossed by its railroad on the same level. Said boards 
shall be elevated so as not to obstruct the travel, and to be easily 
seen by travelers. On each side of said boards shall be painted 
in capita] letters, of at least the size of nine inches each, the 
words "Kailroad Crossing," or "Look out for the cars." This 
section shall not apply to streets in cities, or incorporated towns 
or villages, unless such railroad corporation shall be required to 
put up such boards by the corporate authorities of such cities, 
towns or villages : Provided, that when warning boards have "al- 
ready been erected, under existing laws, the maintenance of the 
same shall be a sufficient compliance with the requirements of 
this section. [L. 1849, p. 32, § 39. 

6. Bell and whistle— Crossings.] § 6. Every railroad corpora- 
tion shall cause a bell, of at least thirty pounds' weight, and a 
steam whistle placed and kept on each locomotive engine, and 
shall cause the same to be rung or whistled, by the engineer or 
fireman, at the distance of at least eighty rods from the place 
where the railroad crosses or intersects any public highway, and 
shall be kept ringing or whistling until such highway is reached. (1) 
[L. 1869, p. 308, § 1. 

premises with reasonable certainty'], which fence I require you to build 
within thirty days [or repair within ten days] after the service of this 
notice. 
Dated and served this day of , 18 — . A. B. 

A copy of this notice should be retained by the person serving it. 

(1) Tlic law does not require a railroad company to ring a bell or sound a whistle 
at a farm crossing. Toledo, Peoria & Warsaw fiatiuay Co. v. Head, 62 111. E., 233. 

"When a railroad crossing is an unusually dangerous one, on account of the 
hilly lormation of the road and parties could not see the track, owing to brush and bushes, until 

17 



258 FENCES. [div. it. 



6|. Killing stock— Frightening team.] § 6.J. Any engineer, 
or person having charge of and running any railroad engine or lo- 
comotive, who shall willfully or maliciously kill, wound or disfigure 
any horse, cow, mule, hog, sheep or other useful animal, shall, 
upon conviction, be fined in the sum of not less than the value of 
the property so killed, wounded or disfigured, or confined in the 
county jail for a period of not less than ten days ; and any such 
engineer or fireman, or other person, who shall wantonly or unnec- 
essarily blow the engine whistle, so as to frighten any team, shall 
be liable to a fine of not less than $10 nor more that $50. See 
"Grim. Code," ch. 38, §191. 

7. Starting train without signal.] § 7. If any engineer on any 
railroad shall start his train at any station, or within any city, in- 
corporated town or village, without ringing the bell or sounding the 
whistle a reasonable time before starting, he shall forfeit a sum of 
not less than $10 nor more than $100 to be recovered in an action 
of debt in the name of the People of the State of Illinois, and such 
corporation shall also forfeit a like sum, to be recovered in the 
same manner. 

8. Approaches at crossings.] § 8. Hereafter, at all of the railroad 
crossings of highways and streets in this state, the several railroad 
corporations in this state shall construct and maintain said cross- 
ings, and the approaches thereto, within their respective rights of 
way, so that at all times they shall be safe as to persons and prop- 
erty. [L. 1869. p. 312, § 1. 

9. Neglect to make, etc., crossings— Notice.] § 9. Whenever 
any railroad corporation shall neglect to construct and maintain any 
of its crossings and approaches, as provided in section 8 of this act, 
it shall be the duty of the proper public authorities, having the 
charge of such highways or streets, to notify, in writing, the near- 
est agent of said railroad corporation of the condition of said 
crossing or approaches, and direct the same to be constructed, al- 
tered or repaired in such manner as they shall deem necessary for 
the safety of persons and property.(l) 

within a few feet, and then only a small portion on account of a sharp curve in the road, held, 
that a neglect to sound the whistle or ring the bell would be gross negligence. Indianapolis cc 
St. Louis £. R. Co. v. Stables, 62 111. R., 313. 

(1) Form, of Notice by Commissioners of Highways to Railroad Agent for 

Repair of Grossing. 

To A. B., nearest agent of the railroad corporation : 

In pursuance of the statute in such cases made and provided, the com- 
missioners of highways of the town of , in the county of , and 

State of Illinois, being the proper public authorities having charge of the 
highways in said town, do hereby notify you, as the nearest agent of the 
above named railroad corporation, that the crossing [or approaches to the 
crossing] of said railroad, at the point where the same intersects the high- 



-HIV. IV.] RAILROAD CROSSINGS. 259 

10. When company neglects, authorities to construct, etc.] § 10. 

If any railroad corporation of this state shall, after having been 
notified, as provided in section 9 of this act, neglect or refuse to 
construct, alter or repair such crossing or approaches within thirty 
days after such notice, then said public authorities shall forthwith 
cause such construction, alteration or repairs to be made. 

11. Company to pay expenses and $100.] § 11. Said railroad 
corporation shall be holden for all necessary expenses incurred in 
making such construction, alteration and repairs, and in addition 
thereto shall be liable to a fine of $100 for such neglect to comply with 
the requirements of this act, which fine shall be enforced by the said 
public authorities, in the name of the People of the State of 
Illinois, before any court of competent jurisdiction in the county. 
Such fine, when collected, to be paid into the treasury of the au- 
thorities enforcing the fine. 

*********** 

14. Not to obstruct highway.] § 14. No railroad corporation 
shall obstruct any public highway by stopping any train upon, or by 
leaving any car or locomotive engine standing on its track, where 
the same intersects or crosses such public highway, except for the 
purpose of receiving or discharging passengers, or to receive the 
necessary fuel and water, and in no case to exceed ten minutes for 
each train, car or locomotive engine. 

********** 

35. Flagmen— Shelter.] § 35. In all cases where the public 
authorities having charge of any street over which there shall be a 
railroad crossing, shall notify any agent of the corporation owning, 
using or operating such railroad, that a flagman is necessary at 
such crossing, it shall be the duty of such railroad company, 
within sixtv days thereafter, to place and retain a flagman at such 
crossing, who shall perform the duties usually required of flagmen ; 
and such flagman is hereby empowered to stop any and all persons 
from crossing a railroad track when, in his opinion, there is dan- 
ger from approaching trains or locomotive engines ; and any rail- 
road company refusing or neglecting to place flagmen, as required 
bj this section, shall be liable to a fine of $100 per day for every 

way leading from to [give description or location of the cross- 
ing, with certainty, so the place may be understood] is out of repair [stat- 
ing wherein; or if the crossing or approaches have not been constructed^ 
state accordingly], and said commissioners do direct that the same be re- 
paired [or constructed or altered] in manner following [state what is re- 
-quired]. 

Dated at , this day of , 18-—. 

q'^' 1 \ Corn's of 



L.B.,1 

5. D, [ 
S.F.J 



E. F.J Highways. 



260 FENCES. [DIY. IV^ 

day they shall neglect or refuse to do so ; and it is hereby made 
the duty of such public authorities having charge of such street, to 
enforce the payment of such fine, by suit, in the name of the town 
or municipal corporation wherein such crossing shall be situate,, 
before any court of competent jurisdiction in the county, and the 
prosecuting attorney shall attend to the prosecution of all suits a& 
directed by said public authorities. All the moneys collected under 
the provisions of this act shall be paid into the treasury of the 
town or municipal corporation in whose name such suits shall have 
been brought : Provided, that when any railroad company is re- 
quired to keep a flagman at a crossing, it shall have the right to 
erect and maintain in the highway or street crossed a suitable 
house for the shelter of such flagman, the same to be so located as 
to create the least obstruction to the use of such street or highway, 
and afford the best view of the railroad track in each direction 
from such crossing.(l) [L, 1869, p. 314, § 8. 

36. Penalties.] § 36. If any railroad corporation, or any of its 
agents, servants or employees, shall violate any of the provisions of 
this act, such corporation, agent, servant or employee shall, sever- 
ally, unless otherwise herein provided, be liable to a fine of not 
less than $10 nor more than $200, to be recovered in an action of 
debt, in the name of the People of the State of Illinois, for the use 
of any person aggrieved, before any court of competent jurisdic- 
tion. 

37. Corporation defined.] §37. The word " corporation,"^ as 
used in this act, shall be construed to include all companies, 
lessees, contractors, persons, or association of persons, owning, 
operating or using any railroads in this state. 

38. Street railroads.] § 38. This act shall not apply to horse 
cars or street railroads. 

(1) Streets In cities and villages or town plats are public highways and in towns 
not incorporated such streets would be subject to the care and superintendence of the commis- 
sioners of highways of the town- 



2>IV. Y.] SUPPOBT OF THE POOR. 261 



k DIVISION V. 

PAUPERS. 

JLN ACT to revise the law in relation to paupers. [Approved March 23, 1874. In force July i, 

1874. Rev. Stat., ch. 107.] 

SUPPORT OF THE POOR. 
Section. 

1. Who liable to support. 

2. Who first called upon. 

3. Complaint by state's attorney. 

4. Complaint by overseer of poor. 

5. Summons. 

6. Trial — Judgment. 

7. Contribution. 

8. Partial support. 

9. Time of maintenance and payment. 

10. Order may be changed. 

11. How payment enforced. 

12. Costs. 

13. Bringing pauper into county — Penalty. 

14. Support of paupers by county. 

15. Support by towns. 

16. Eemoval of pauper not resident of county or town. 

17. "Residence" defined. 

18. Overseers in counties under township organization. 

19. In counties not under township organization. 

20. Duties of overseers. 

21. Letting out support of poor. 

22. Bond. 

23. Temporary relief. 

24. Aid to non-resident poor — Burial. 

25. Report of overseers to county board. 

26. Appropriations. 

27. Report of overseers to town auditors. 

28. Powers of county board. 

1. Erecting and maintaining poor-house and farm. 

2. Gifts, bequests, etc., in aid. 

3. Rules, etc., for government. 

4. Appointment of keeper and servants, etc. 

5. Appointment of county physician, etc. 

6. Appointment of county agent. 

7. Appropriations. 

8. Sale of poor farm. 

29. Account by overseers. 

30. Account by county agent. 

31. Account by keeper of poor-house. 

32. Penalty for neglect to report. 

33. Poor to be kept at poor-house. 

34. Curative. 

35. Township support, how abandoned. 

1. Who liable to support.] § 1. Every poor person who shall 
be unable to earn a livelihood in consequence of any bodily in- 
firmity, idiocy, lunacy or other unavoidable cause, shall be sup- 



262 PAUPERS. [div. y* 

ported by the father, grandfather, mother, grandmother, children, 
grandchildren, brothers or sisters of such poor person, if they, 
or either of them, be of sufficient ability : Provided, that when 
any persons become paupers from intemperance, or other bad. 
conduct, they shall not be entitled to support from any relation, 
except parent or child.(l) [E. S. 1845, p. 402, § 1. 

2. Who first called on.] § 2. The children shall first be called 
on to support their parents, if there be children of sufficient 
ability ; and if there be none of sufficient ability, the parents of 
such poor person shall be next called on if they be of sufficient 
ability; and if there be no parents or children of sufficient 
ability ; the brothers and sisters of such poor person shall be 
next called on if they be of sufficient ability ; and if there be no 
brothers or sisters of sufficient ability, the granchildren of such 
poor person shall next be called on if they be of sufficient ability;. 
and next the grandparents, if they be of sufficient ability : 
Provided, married females, while their husbands live, shall not 
be liable to contribute for the support of their poor relatives, 
except when they have separate property, or property in their 
own right, out of which such contributions can be made. [K. S. 
1845, p. 402, § 2. 

3. Complaint by state's attorney.] § 3. Upon any failure of any 
such relative, or relatives, to support such poor person as pro- 
vided by thisact, it shall be the duty of the state's attorney to 
make complaint thereof to the county court of his county, 
against all the relatives of such pauper in this state, liable to 
his support, and prosecute the same. 

4. Complaint by overseer.] §4. The complaint provided for 
in the preceding section may also be made by the overseer of the 
poor of the town or precinct where the poor person may reside, 
and it shall be the duty of such overseer to make such complaint 
in all cases where there may not be a county agent or state's at- 
torney, or when the county agent or state's attorney shall refuse 
or neglect to make the same. * 

5. Summons.] § 5. At least ten days' notice of such applica- 
tion shall be given to the defendant, by summons, requiring him 
to appear and answer the complaint. 

6. Trial— Judgment.] § 6. The defendants being duly noti- 
fied, the court shall proceed in a summary way to hear the proofs 

(1) A pauper, under our statute, is a person destitute of pecuniary means and un- 
able to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy or other unavoid- 
able cause. Williams v. Franklin. 39 111. R., 22. 

Where a man has been supplied at his own request as a pauper for many months.it is 
good evidence, so far as he is concerned, that he is a pauper. Hunnewell v. Hobart, 40 Maine R., 28. 

A pauper is defined to be a poor person, particularly one so indigent as to depend; 
upon the parish or town for support. Lee County v. Lackie, 30 Ark. R., 764, 



DIV. V.] SUPPOKT OF THE POOR. : 263 

and allegations of the parties, without further written pleadings, 
and if satisfied by the allegations and proofs that the defendants, 
or any of them, are not supporting such poor person, or contrib- 
uting their proper share for such support, in a manner suitable 
to the situation of such poor person, taking into account the 
ability of such defendants, then the court may at the time of 
giving judgment in the case, and from time to time thereafter, 
make any and all necessary orders in regard to the custody of 
such poor person, and for the payment weekly to the overseer of 
the town or precinct, or to such other person as the court shall 
direct, of such sum, to be applied in the support of such poor 
person, as in the opinion of the court is necessary to so properly 
support such poor person, taking in view the ability of the de- 
fendants to furnish such support. The court may discharge any 
defendant that may appear not to be liable for such support, or 
who is contributing his fair share thereof. 

7. Contribution.] § 7. If it shall appear that the relatives of 
a certain degree are unable wholly to maintain such poor person, 
but are able to contribute towards his support, the court may, in 
its discretion, direct two or more relatives of different degrees to 
maintain such poor person, and shall prescribe the proportion 
which each shall contribute for that purpose. 

8. Partial support.] § 8. If it shall appear that the relatives 
liable, as aforesaid, are not of sufficient ability wholly to main- 
tain such poor person, but are able to contribute something, the 
court shall direct the sum, in proportion to their ability, which 
such relatives shall pay weekly for that purpose. 

9. Time of maintenance and payment.] § 9. The order may 
specify the time during which the relatives aforesaid shall main- 
tain such poor person, or during which any of the sums so di- 
rected shall be paid, or it may be indefinite, and until the further 
order of the court. 

10. Order may be changed.] § 10. The court may from time 
to time, vary such order whenever circumstances shall require it, 
on the application either of any relative affected thereby, or of 
the county agent or overseer of the poor, upon ten days' notice 
being given to the opposite party. 

11. How payments enforced.] § 11. Payment of the several 
sums under such order as they fall due may be compelled by at- 
tachment as for contempt against the persons of the defendants, 
or by execution against their lands and tenements, goods and 
chattels, or both, in like manner as other judgments at law or 
decrees in chancery. 

12. Costs.] § 12. In every such application, if the judgment 
shall be against the defendant, he shall also be adjudged to pay 



264 • PAUPERS. [div. v. 

the costs of the proceeding, or the costs may be apportioned ac- 
cording to the rights of the case, but if the application is dis- 
missed it shall be at the costs of the county or town on whose 
behalf the application is made. [§ 3-13, see act of 1869. L. 
1869, p. 369. 

13. Bringing pauper into county— Penalty.] § 13. If any 

person shall bring and leave any pauper in any county in this 
state, w r herein such pauper is not lawfully settled, knowing him 
to be a pauper, he shall forfeit and pay the sum of $100 for every 
such offense, to be sued for and recovered by and to the use of 
such county by an action of debt, by any justice of the peace in 
the proper county. [E. S. 1845, p. 404, § 16. 

14. Support by county.] § 14. Every county (except those in 
which the poor are supported by the towns) shall relieve and sup- 
port all poor and indigent persons lawfully resident therein, except 
as herein otherwise provided. (1) [E. S. 1845, p. 402, § 3. 

15. Support by towns.] § 15. Every town in counties in which 
the poor are supported by the towns (as provided by law) shall 
relieve and support all poor and indigent persons lawfully resident 
therein, except as herein otherwise provided. 



(1) The duty of supporting the paupers resident in the various counties of this 
State, is imposed upon such counties, and they are bound by all contracts for the support of such 
persons, when legally entered into by the proper officer. Supervisors of Clay County v. Plant, 42 
111. R., 324. 

The statute makes the respective counties liable for clothes furnished patients in 
the hospital, who are paupers and county charges. Opinion Att'y Gen. Edsall. May 3, 1875. 

It is the duty of the counties to maintain all paupers in their counties, and it is 
immaterial whether they are found in cities villages or other parts of the county. Opinion Att'y 
Gen. Edsall, January 27, 1876. 

There is no law in force authorizing a county- to abandon the support of its 
poor, as a county, and adopt the system of separate support by the townships. Such change 
cannot be made without further legislation. Opinion Att'y Gen. Edsall, April 2, 1878. 

If the proper public authorities fail to provide a comfortable support of paupers, 
after notice of their condition, individuals may do so, and recover of the public therefor. Sea- 
greaves v. City of Alton, 13 111. R., 372. 

Where a city voluntarily supports an insane person, having means of support, 
recovery cannot be had of the county therefor. City of Alton v. Madison County, 21 111. R., 115. 

It has been held to be the duty of overseers of the poor to relieve a person 
found in their town in distress, although he may have property of his own, not available for his 
immediate relief. Norridgewock v. Solon, 49 Maine R., 385. 

It has, in practice, always been supposed that when an overseer of the poor is unable to pro- 
cure any contract for the support of a pauper, and no poor house has been provided, or in case 
of urgency, he may purchase necessary articles for the relief of the pauper on credit of the 
county, and thus render it liable for payment. Supervisors of Clay County v. Plant, 42 111. R., 325. 
See Clinton v. Benton, 49 Maine R., 550. 

But where contracts tor the support of paupers, or for articles furnished, are extravagant or 
improvident, the board of supervisors may, no doubt, reduce the amount to be paid. Super- 
visors of Clay County v. Plant, 42 111. R., 324. 

A county would probably not be liable for medical services rendered a pauper, 
unless ordered bv the overseer of the poor, even where it was needed before such order could 
be obtained. French v. Benton, 44 N. Hamp. R., 28. 

"Where goods are furnished to persons as paupers, and the amount is sought to be 
recovered of the county, it should be shown that the persons to whom the goods were furnished 
were paupers, or the claim may properly be rejected. Board of Supervisors v. Newell ct al., 81 111. 
R . 387. 



DIY. V.] SUPPORT OF THE POOR. 265 

16. Removal of pauper not resident of county, etc.] § 16. If 

any person shall become chargeable as a pauper in any county or 
town, who did not reside therein at the commencement of six 
months immediately preceding his becoming so chargeable, but did, 
at that time, reside in some other county or town in this state, it 
shall be the duty of the county or town clerk, as the case may be, 
to send written notice by mail or otherwise, to the county clerk of 
the county in which the pauper so resided, or if he then resided 
in a town supporting its own poor, to the town clerk of such town, 
requesting the proper authorities of such county or town to re- 
move said pauper forthwith, and to pay the expenses accrued and 
to accrue in taking care of the same ; and such county or town, as 
the case may be, where such pauper resided at the commencement 
of the six months immediately preceding such person becoming 
chargeable as a pauper shall pay to the county or town, so taking 
care of such pauper, all reasonable charges for the same, and such 
amount may be recovered by suit in any court of competent 
jurisdictional) [L. 1861, p. 181, § 1, k 2; it. S. ±845; Laws, 1875. 

17. "Residence" defined.] § 17. The term "residence," men- 
tioned in this act, shall be taken and considered to mean the 
actual residence of the party, or the place where he was employed, 
or in case he was in no employment, then it shall be considered 
and held to be the place where he made it his home. (2) [B. S. 
1845, p. 404, § 15. 

(1) Form of Notice to Remove Non-resident Pauper. 

To the county clerk of county, State of Illinois [or as the ease may 

be]: 
You are hereby notified that one A. B. has become chargeable as a pau- 
per in the town of , county of , and State of Illinois, he not 

residing therein at the comrnen cement of thirty days immediately pro- 
ceeding his becoming so chargeable, but did at that time reside in [state 
residence of the pauper~], the proper authorities of said county [or town] 
are therefore requested to remove said pauper forthwith, and pay the ex- 
penses accrued and to accrue in taking care of the same. 

Dated at , this day of , A. D. 18—. 

CD., 
Town Clerk of the town of . 

(2) The settlement or residence of a pauper is the place of his birth until he acquires 
another derivatively from his parents or by acts ot his own. Toby v. Madison, 44 Penn, St. R. (8 
Wright). 60. 

After coming of age, a minor's removal elsewhere to reside, with no determinate 
intention of departure, will fix his domicile there ; and it will not be altered by his afterwards 
going away temporarily with the intent to return. Hart v. Lindsey, 17 N. Hamp. R., 235. 

A person having a legal settlement in one place, that settlement continues until 
another is acquired in the State. A settlement in another state or county will not change that 
acquired in this State, if the pauper returns to it. Where a person moved into a town, pur- 
chased property, resided two years, and then left the State, leaving his family behind him, the 
settlement and residence of the family is there fixed; and, if they become paupers, they are a 
charge upon such town or county, Payne v. Town of Dunham, 29 111. R., 129. See Townsend v. 
£itlerica, 10 Mass. R., 411. 



266 PAUPERS. [div. v.- 

18. Overseers of the poor.] § 18. In counties under township 
organization the supervisors of the respective towns therein shall 
be ex-officio overseers of the poor of their towns : Provided, That 
for towns containing four thousand (4000) inhabitants or over, 
upon written request of said supervisors, the county board may 
appoint an overseer who is a resident of said town, fix his com- 
pensation and term of office, which shall not exceed the term of 
said board. The overseer so appointed shall execute to the 
county an official bond in a penal sum and with sureties to be fixed, 
and approved by the county board, conditioned for the faithful 
discharge of his duties and the due application of all funds or 
property which shall come to his hands as such overseer: Pro- 
vided, further, That this section shall not apply to counties con- 
taining over two hundred thousand (200,000) inhabitants.(l) [As 
amended, Laws 1877, p. 143. 

19. Overseers in counties not under township organization.] 

§ 19. In counties not under township organization, the county 
board shall designate some justice of the peace or some other 
suitable person in each precinct therein, who shall be overseer of 
the poor in such precinct. [R. S. 1845, p. 403, § 5. 

20. Duties of overseers.] § 20. The overseers of the poor shall 
have the care and oversight of all such persons in their town or 
precinct as are unable to earn a livelihood in consequence of any 
bodily infirmity, idiocy, lunacy or other unavoidable cause, and as- 

An illegitimate child retains the settlement which his mother had at his birth 
until he gains one in his own right, notwithstanding that she subsequently acquires another.. 
Hallowell v. Augusta, 52 Maine R.. 216. 

Persons acting under the legal authority of others, or not capable of acting for 
themselves for the want of mind, do not lose or acquire a residence thereby. Payne v. Town of 
Dunham, 29 111. R., 125; Tovm of Freeporty. Stephenson County, 41 111. R., 501. The residence or 
settlement of such a person is derived from his father or those having paramount control over 
him. Payne v. Town of Dunham, 29 111. R. 128. 

A residence is not changed toy absence for a temporary purpose only, if the 
person has sufficient intelligence to form and retain the intention of leaving for a temporary 
purpose and of returning ; and he does return, in accordance with such intention. Corinth v. 
Bradford, 15 Maine R., 540. The rule that a domicil once acquired is presumed to continue un- 
til a subsequent change is shown, applies to cases of settlement of paupers. Chickopeer. Whately, 
6 Allen R., (Mass.) 508. 

The admissions of overseers of the poor in binding out, or their acts in providing 
support for a pauper, are not admissable in evidence against the town to prove the settlement of 
a person therein. New Bedford v. Taunton, 9 Allen (Mass.) 207 ; Dartmouth v. Lakeville, Id., 211. 

By the division of a town, or the annexation of a portion of one to another, 
the pauper of the portion annexed does not lose his previous settlement or residence at the 
place where he had it when he became a public charge. Town of Freeport v. Stephenson County^ 
41 111. R., 495. See cases cited, Oxford v. Bethany, 15 Conn. R..252; vice versa, 550 ; Brewer v» 
Epdivgion, 42 Maine R.,541. Yarmouth v. North Yarmouth, 44 Maine R., 353; Southridge v. Sharif 
ton, 15 Mass. R., 248. 

(1) Under the township organization law, it is not necessary that the justices 
of the peace of the town shall join with the overseer of the poor in ordering goods tor 
the support of a pauper; he may act alone. The overseer of the poor alone is authorized to- 
perform the duties of the office. Where he has entered into a contract for the support of a pau- 
per, the liability of a county is thereby fixed, and its agents have no discretion, but must dis- 
charge the obligation. Nor can the chairman of the board of supervisors, in such a case, by 
notice or otherwise, abridge the powers of the overseer of the poor. He derives his powers- 
from the law, and not from the supervisors. Supervisors of Clay County v. Plant, 42 111. R., 324. 



DIV. V.] SUPPOKT OF THE POOR. 267 

are not supported by their relatives or at the county poor house, 
and shall see that they are suitably relieved, supported and em- 
ployed, subject to such restrictions and regulations as may be pre- 
scribed by the county board, or in case the poor are supported by 
the town, subject to such restrictions and regulations as may be 
prescribed by such town, [R. S. 1845, p. 403, § 6. 

21. Letting out support of poor.] § 21. Where the county has 
not a poor house at which its poor are supported, the overseers of 
the poor of the respective towns or precincts shall commit the 
care of such poor persons as shall require to be supported by the 
county or by the town, to some moral and discreet householder in 
the town or precinct of sufficient ability to provide for them, and 
who will enter into a written contract with the county, (or, if the 
poor are supported by the town, with the town,) therefor upon 
such terms and conditions as may be approved by the county 
board or board of town auditors, as the case may be.(l) [E. S. 
1845, p. 403, § 6. 

22. Bond.] § 22. Every person to whom the care of the poor 
of any town or precinct shall be committed, shall execute to the 
county (or town, as the case may be,) a bond, with such security 
as the county board (or board of town auditors, as the case may 
be,) shall require, conditioned that he will treat every poor person 
committed to his care with humanity, and afford him the necessary 
attention and comforts of life suitable to his condition, and that 



(1) Form of Contract for Support of Poor Person. 

This contract, made and entered into this day of , 18 — , be- 
tween A. B., of , and the town of , in the county of , 

and State of Illinois, witnesseth: That the said A. B., in consideration 

of the agreements herein, on the part of said town of -, does hereby 

contract and agree to take care of one O. P., a poor person of said town, 
for and during the period of [state the time'} from the date hereof, and 
during said time to support and provide for said O. P. in a good and com- 
fortable manner, and to supply him- with [state the particulars of the con- 
tract as agreed upon]. 

And the said town of agrees, on condition of faithful perform- 
ance of this contract by said A. B. on his part, as herein set forth, to pay 
to him [state agreement on the part of the town]. 

In witness whereof, said A. B, has'hereunto set his hand and seal, and 
C. D., supervisor of said town, doth the like, on the part of said town, the 
day and year first above written. 

A. B., [SEAIi.] 
C. D., [SEAL.] 

Supervisor. 

Form of Approval of Contract by Town Auditors. 

We, the town auditors of the town of , do hereby approve the 

above [or within] contract by A. B. with said town of . 

Dated, this day of , 18—. 

[To be signed by the Town Auditors]. 



^68 PAUPERS. [div. y. 

lie will fulfil his said agreement for the keeping of such poor 
according to the true intent and meaning thereof.(l) [R. S. 1845, 
p. 403, § 6. 

23. Temporary relief.] § 23. When any poor or indigent per- 
son does not require to be supported wholly by the count}% the 
overseer of the poor may, subject to such limitations as may be 
prescribed by the county board, render him temporary relief with- 
out his being committed to the care of any such person, or being 
sent to the county poor house. 

24. Aid to non-resident poor — Burial.] § 24. When any non- 
resident, or any person not coining within the definition of a pau- 
per, of any county or town, shall fall sick, not having money or 
property to pay his board, nursHg and medical aid, the overseers 
of the poor of the town or precinct in which he may be shall give 

(1) Form of Bond by Person Contracting to Take Care of Poor Person 

Know all men by these presents, that we, A. B. and C. D., of , are 

held and firmly bound unto the town of — , in the county of , and 

State of Illinois, in the penal sum of dollars, which sum well and 

truly to be paid, we bind ourselves, our heirs, executors and administra- 
tors, jointly, severally and firmly by these presents. Sealed with our seals, 
this day of , 18 — . 

The condition of the above obligation is such that, whereas, the above 
bounden A. B. has this day entered into written contract with the said 

town of — , for the care and support of O. P., a poor person of said 

town, for and during the period of [state the time]. Now, if the said A. 
B. shall treat said poor person so committed to his care with humanity, 
and afford him the necessary attention and comforts of life suitable to his 
•condition, and shall fulfill his said agreement for the keeping of such poor 
person, according to the true intent and meaning thereof, then this obli- 
gation to be void, otherwise to remain in full force and effect. 

A. B. [seal.] 

C. D. [SEAL.] 

The bond required to be given hy the person contracting to support a pauper, 
is designed to indemnify the county or town against further expense in supporting the pauper, 
but not to absolve it from the duty. If the person agreeing to support the pauper fails through ina- 
bility, or otherwise, to do so, the county or town must still afford the relief, and must look to the 
person with whom they contracted, and his securities, for indemnity for the loss. If the over- 
seer fails to take a bond, and the person with whom he has contracted fails to support the pau- 
per, he should then, if within his power, contract with some other person ; or failing in that, he 
should furnish such articles as are adapted to the necessities of the pauper, and hire a suitable 
person, on the best terms he can, to help him. If the overseer should act in bad faith, or is guilty 
■of fraud, and the county thereby becomes the loser, he would, it seems, be liable for the loss. 
Supervisors of Clay County v. Plant, 42 111. R., 325. 

A contract with a county or town to properly feed and clothe every pauper sent 
to the contractor upon the order of the proper authorities, for a specified sum, the contractor can 
recover no more than that sum from the county or town for taking care of a lunatic pauper, al- 
though the trouble and expense was increased by reason of the insanity. The term pauper, 
under the statute, includes lunatic paupers. County of Macoupin v. Edwards, 15 111. B,., 198. 

A person not authorized hy law for that purpose, cannot furnish board to one who 
is on the list of paupers, and an inmate of the poor-house, and have a claim therefor upon the 
county, whether he knew the party to be a pauper or not; and the overseers of the poor have 
no power to bind the county to the payment of such claim. Board of Commissioners of Knox 
County v. Joves, 7 Ind. R., 3. 

Insane persons are not intended to he included in the pauper act. An insane per- 
son having property adequate to his support, is not a pauper, and the county is not liable for the 
support of such person, nor is the city in which he resides liable for his support. City of Alton v. 
■County of Madison, 21 111. R., 115. 



DIY. V.] SUPPOKT OF THE POOR 26$ 

or cause to be given to him, such assistance as they may deem 
necessary and proper, or cause him to be conveyed to his home, 
subject to such rules and regulations as the county board may 
prescribe ; and if he shall die, cause him to be decently buried.(l) 
[K. S. 1845, p. 402, § 4. See L. 1872, p. 673. 

25. Report of overseers to county board.] § 25. In all counties 
in which the poor are not supported by the towns, the overseers 
of poor of each town or precinct shall, at each regular session of 
the county board, and at such other times as the county board 
may require, make a full report of all their actings and doings, and 
return a list of all the poor in their respective towns or precincts, 
specifying the age, sex, condition and infirmities of each. [E. S. 
1845, p. 403, § 7. 

26. Appropriations.] § 26. Upon such report being made, it 
shall be the duty of the county board to make the proper appro- 
priations from the county treasury for the payment of the neces- 
sary expenses di such relief and support of the poor. [R. S. 1845, 
p. 403, § 8. 

27. Report of overseers to town auditors.] § 27. When the 
poor are supported by towns, the overseers of the poor shall make 
such report to the board of town auditors at their regular meeting, 
who shall audit all accounts and order the payment of such ex- 
penses from the town treasury. 

28. Powers of county board.] § 28. The county board of any 
county in this state in which the poor are not supported by the 
towns thereof, as provided by law, shall have power — 

1. To acquire, in the name of the county, by purchase, grant, 
gift or devise, a suitable tract or tracts of land upon which to erect 
and maintain a county poor house, and other necessary buildings 
in connection therewith, and for the establishment and mainte- 
nan ce of a farm for the employment of the poor, and to erect and 
maintain such buildings and establish and maintain such farm; 
but they shall not expend for the purchase of any such land or the 
erection of any such buildings a sum exceeding $3,000, without a 
two-thirds majority vote of all the members of the county board. 

2. To receive, in the name of the county, gifts, devises and be- 
quests to aid in the erection or maintenance of a poor house, or in 
the care and support of poor and indigent persons. 

(1) Counties are liable for a reasonable compensation, under the pauper act, to 
one who renders medical aid to persons falling sick within the county, and haying no means to 
pay for the same. The decision of the board of supervisors as to what is a proper allowance, is 
not conclusive; and if a proper amount is not allowed, an action may be maintained therefor, 
In such cases, persons faliing sick with a contagious disease are not paupers within the meaning 
of the statute, and in an action to recover for medical aid so furnished to them, the liability of 
the county is not affected by the fact that a "poor-house" had been provided in the county for 
the reception of paupers. Such an establishment is not designed to receive persons affected with 
contagions disease, but only those who are technically paupers. Supervisors of LaSalle v. Rey- 
nolds, 49 111. R., 186. 



^70 PAUPEES. [DIV. V. 

3. To make all proper rules and regulations for the management 
of the county poor house and poor farm, and of the inmates of the 
poor house. 

4. To appoint a keeper of the poor house and all necessary 
agents and servants for the management and control of the poor 
house and farm, and prescribe their compensation and duties. 

5. To appoint a county physician and prescribe his compensa- 
tion and duties. 

6. To appoint an agent to have the general supervision and 
charge of all matters in relation to the care and support of the 
poor and prescribe his compensation and duties. 

7. To make all proper and necessary appropriations out of the 
county treasury for the purchase of land and the erection of build- 
ings, as authorized by this act, and to defray the expenses neces- 
sary in the care and maintenance of the same, and for the support 
of the poor, and to cause an amount sufficient for ^aid purposes to 
be levied upon the taxable property of the county, and collected 
as other taxes. 

8. Upon a two-thirds majority of all the members of the board, 
to sell and dispose of the whole or any part of the poor farm of the 
county in such manner and upon such terms as they may deem most 
for the interests of the county, and to make and execute all neces- 
sary conveyances thereof, in the same manner as other convey- 
ances of real estate may be made by a county. [R. S. 1815, p. 
404, § 17, 18, 19, 20, 23; L. 1861, p. 180, § 1 ; L. 1855, p. 132, § 1. 

29. Account by overseer.] § 29. The overseers of the poor in 
each town in counties under township organization, (whether the 
poor are supported by townships or otherwise,) and of each pre- 
cinct in counties not under townsship organization, shall keep an 
accurate account, showing the name of every person relieved or 
supported in their town or precinct ; the place of his birth ; the 
manner in which he is relieved or supported, whether in whole or 
in part at the expense of the county or town ; the amount of the 
aid furnished ; whether the dependency was on account of idiocy, 
lunacy, intemperance, or other cause, stating the cause. And on 
or before the first meeting of the county board of September in 
each year, file a copy of such account with the county clerk of 
their county. 

30. Account by county agent.] § 30. When the county agent 
shall furnish relief to any of the poor of the county, he shall keep 
a like account, and at the same time in each year file a copy of 
the same with the county clerk of his county. 

31. Account by keeper of poor house.] § 31. The keeper of 
the poor house shall also keep an account, showing the name of 
each person admitted to the county poor house; the time of his 



0)IY. V.] SUPPORT OF THE POOR. 271 

admission and discharge ; the place of his birth ; whether his de- 
pendence resulted from idiocy, lunacy, intemperance, or other 
cause, stating the cause ; and shall, at the same time, in each year, 
file with the county clerk of his county a copy of the same, to- 
gether with a statement showing the average number of persons 
kept in the poor house each month during the year. 

32. Neglect to report.] § 32. If any overseer of the poor, 
county agent, or keeper of the poor house, shall fail or neglect to 
make such a report at the time required by this act, he shall, for 
each offense, forfeit the sum of $25, to be recovered in the name of 
the county, in any court of competent jurisdiction. 

33. Poor to be kept at poor house.] § 33. When any county 
shall have provided a suitable poor house for the accommodation 
of the poor of the county, and the same is ready for the reception 
and care of the poor, all poor persons requiring the care and support 
of the county shall be cared for and supported at such poor house, 
and not in the several towns and precincts in the county, except 
when they cannot be received in the poor house, and except as 
herein otherwise provided. [R. S. 1845, p. 404, § 21. 

34. Curative.] § 34. In all cases where counties have voted 
for the support of the paupers of such counties by townships, and 
the said counties have acted in good faith for the term of five years 
tinder the authority of said vote, in the support of paupers by 
townships, the acts of said counties and the townships thereof 
shall be deemed legal and binding, notwithstanding any informality 
in the time or manner of holding the said elections, or in record- 
ing or preserving the records of the same. [L. 1871-2, p. 596, § 1. 

35. Township support— How abandoned.] § 35. Upon the pe- 
tition of not less than twenty legal voters residing in each one of 
a majority of the towns in any county which shall have adopted 
the mode of supporting paupers by townships, the county board 
shall cause to be submitted to the voters of the county, at the next 
general election for town officers, the question of the continuance 
of that mode of supporting the poor. The ballots shall be : "For 
township support of paupers," or " Against township support of 
paupers," and notices of the election shall be given, and the votes 
canvassed and returns made the same as for county officers. If it 
shall appear by the returns of said election that a majority of the 
votes cast on that question at said election are against township 
support of paupers, then that mode of supporting the poor shall 
• cease, and thereafter the poor shall be supported in the same man- 
ner as provided by law in counties not having adopted the support 
of the poor by townships ; otherwise the poor of such county shall 
be supported by townships as heretofore provided. Said question 
shall not be submitted oftener than once in five years. 



272 PAUPEES. . [diy. v. 

RESIDENCE FOR PURPOSE OF VOTINQ. 

[ACT approved May 25, 1877.J 
Section. 

1. Paupers — Residence — Voting. 

1. Paupers— Residence — Toting.] § 1. No pauper or inmate 
of any county poor-house, insane asylum or hospital in this 
State, shall by virtue of his abode at such county poor-house, 
insane asylum or hospital be deemed a resident or legal voter in 
the town, city, village or election district or precinct in which 
such poor-house, insane asylum or hospital may be situated ; but 
every such person shall be deemed a resident of the town, city, 
village or election district or precinct in which he resided next 
prior to becoming an inmate of such county poor-house, insane 
asylum or hospital. (1) 

SEPARATE SUPPORT — POOR HOUSE. 





[ACT approved May 23, 1877.1 


Section. 


1. 
2. 
3. 
4. 
5. 


Separate support of paupers. 

Rate per day. 

Each town. 

When town fails to support. 

Reports. 



1. Separate support of paupers.] § 1. The county board of 
any county that has heretofore adopted, or may hereafter adopt 
the separate support of paupers may, whenever it shall see fit so 
to do, establish and maintain a county poor house, and for this 
purpose shall have all the power given to county boards by sec- 
tion twenty-eight (28) of an act entitled "An Act to revise the 
Law in relation to Paupers," of the Bevised Statutes of 1874. 

2. Rate per day.] § 2. The county board of any such county, 
whenever any such poor house is established, may fix the rate 
per day or per week, that each town shall pay for the support 
and maintenance in such poor house for each of their respective 
paupers, which shall be paid to the county agent in charge of 
the poor house, or otherwise, as provided by the county board. 

3. Each town.] § 3. Each town of such counties may then 
have its paupers supported in such poor house, by paying said 
rate, or may provide for them otherwise, as it shall deem best. 

4. When town fails to support.] § 4. The county agent in 
charge of said poor house shall not receive any paupers except 

(1) A person does not forfeit his residence in a town or precinct in which he was 
a, voter merely by becoming a county charge and an inmate of the poor-house. Dale v. Irwin p 
78 111. R., 170. 



DIV. V.] TUITION OF PAUPER CHILDREN. 273 



upon the order of the overseer of the poor of the town to which 
paupers belong, and should any town fail to pay for the support 
of its paupers, the county agent may be authorized by the county 
board to return such paupers to the town to which he or she may 
belong, or the county may sue for and recover the amount due 
for taking care of such paupers. 

5. Reports.] §5. The county agent shall, as often as required 
by the county board, make full and complete reports, under oath, 
of all moneys received and expended by him, as such county 
agent, and shall furnish such other information in relation to the 
poor house and farm as may be required of him. 

TUITION OF PAUPER CHILDREN. 

[ACT approved May 24, 1877.] 
Section. 

1. Tuition of pauper children. 

2. To whom paid. 

1. Tuition of pauper children.] § 1. County Boards shall or- 
der to be paid out of the county treasury a just and equitable 
sum of money for the tuition of pauper children residing in the 
county poor house, and attending any district school in this 
State. 

2. To whom paid.] § 2. Said money shall be paid to the 
Township Treasurer of the Township in which said district is 
situated, and said Treasurer shall place said money to the credit 
of the district where said pauper children attend school. 



18 



DIV. VI.] FOBMING INSURANCE COMPANIES. 275 

DIVISION VI. 

TOWNSHIP INSURANCE COMPANIES.* 

AN ACT to revise the law in relation to township insurance companies. [Approved March 24, 
1874. In force July 1, 1874. Rev. Stat. ch. 73.] 

Section. 

1. Who may form. 

2. How formed. 

3. Directors — election of. 

4. President— Secretary— Treasurer. 

5. Bonds of secretary and treasurer. 

6. Corporate powers. 

7. Members. 

8. Manner of insuring. 

9. Risks classified. 

10. Where company not to insure. 

11. Notice of loss— Adjustment— Expense. 

12. Assessments. 

13. Notice of assessment to members. 

14. Suits. 

15. Annual statement. 

16. Withdrawal of member. 

17. Report to auditor — Certificate — Fees. 

18. Dissolution. 

19. Companies formed under act of 1872. 

1. Who may form.] § 1. Any number of persons, not less 
than twenty-five, residing in any congressional or political town- 
ship, or in one or more adjoining congressional or political town- 
ships in this State, not exceeding six in number, and without re- 
gard to county lines, who collectively shall own property of not 
less than $50,000 in value, which they desire to have insured, may 
form an incorporated company for the purpose of mutual insurance 
against loss or damage by fire or lightning. 

2. How formed.] § 2. Such persons shall file with the auditor 
of public accounts a declaration of their intention to form a com- 
pany for the purposes expressed in the preceding section, which 
declaration shall be signed by all the corporators and shall con- 
tain a copy of the charter proposed to be adopted by them. Such 
charter shall set forth the name of the corporation, which shall 
embrace the name of the township in which the business office of 
such company is to be located and the intended duration of the 
company, and if it is found conformable to this act and not incon- 
sistent with the laws and constitution of this State, the auditor 
shall thereupon deliver to such persons a certified copy of the 
charter, which, on being filed in the office of the county clerk of the 
county where the office of such company is to be located, shall be 
their authority to organize and commence business. Such certified 

* Amended, 1881. See Appendix, p. 488. 



276 TOWNSHIP INSUEANCE COMPANIES. [Dry. VL. 

copy of the charter may be used in evidence for or against said com- 
pany, with the same effect as the original : Provided, that such 
charter so obtained shall be subject to control and modification by 
the general assembly.(l) 

3. Directors — Election of.] § 3. The number of directors shall 
be nine — five of whom shall constitute a quorum to do business — 

(1) Form of Declaration of Intention to form Company. 

We, the undersigned, residing in the political township of [insert name 
of township as known for township organization. If it is merely a congress- 
ional township and not under township organization, then say, Congress- 
ional township No. , giving the number thereof according to the de- 
scription of the U. S. government], in the county of and State of 

Illinois, [or of the political or congressional township of , describing 

them as above, being adjoining townships in the State of Illinois, not ex- 
ceeding six in number, or as the case may be], who collectively own 
property of not less than fifty thousand dollars in value, which we desire 
to have insured, hereby declare our intention to form an incorporated 
company for the purpose of mutual insurance against loss or damage by 
fire or lightning, according to the statute in such case made and provided. 
The following is a copy of the charter proposed to be adopted by us for the 
purpose aforesaid : 

[Here insert copy of charter.] 

In testimony whereof we have hereunto subscribed our names, this 

day of , A. D. 18—. [Signed by all the corporators.] 

The form of charter contemplated by this act will be drawn to suit the wishes of the cor- 
porators in each cage. The ollowing is given as a general form of charter, which may Lie varied 
to suit circumstances, and which is designed to be inserted in the foregoing form of declaration 
at the place therein indicated. 



Form of Charter for Township Mutual Insurance 
We, E. B., A. T. and H. P. [giving the names of all the corporators], re- 
siding in the township of [insert as in the form of declaration of 

intention to organize], in the county of , and State of Illinois, do 

propose the following as the charter adopted byus, for the purpose of a 
mutual insurance company, pursuant to the statute in such cases made 
and provided. 

1. The name of said company shall be The Township Mutual In- 
surance Company, and its business office shall be at , in said town- 
ship of , in the county of , and State of Illinois. 

2. The intended duration of said company shall be years. 

3. The object of said company shall be to engage in and carry on the 
business of a mutual insurance against loss or damage by fire or lightning 
within the limits of the township [or townships] above named. 

4. Said company shall have and possess all the powers and authority 
prescribed by an act of the General Assembly of the State of Illinois, in 
relation to township insurance companies. 

In witness whereof we have hereunto set our hands, this day of 

, A. D. 18 . [Signed by all the corporators.] 

In. lieu, of the foregoing general declaration of the object and powers of the com- 
pany, the same may be set out specifically as the corporators desire, placing any restrictions upon 
the company that may be deemed advisable, within the statute. The office or place of business 
of the company may be set forth in the charter if deemed proper or it may be left with the 
company to fix the same, from time to time, as circumstances shall dictate. 

In the abgence of specifications in the charter, the law itself will' be the charter of authority or 
ground for the acts and doings of the company, and for that purpose reference can thereto 
*e had, 



"DIV. VI.] MANAGEMENT. 277 

to be elected from the corporators by ballot, and hold their offices 
until their successors are elected and qualified. In the election of 
the first board of directors each corporator shall be entitled to one 
vote. All subsequent elections, except to fill vacancies, shall be 
held at the annual meeting of the company, which shall be on the 
first Tuesday after the first Monday of January in each year, 
and every person insured shall be entitled to as many votes as 
there are directors to be elected, and an equal additional number 
for each $500 that he may be insured in the company, and may 
cast the same in person or by proxy, distributing them among the 
same or a less number of candidates than the number of candi- 
dates to be elected, or cumulating them upon one candidate, as he 
shall think fit. 

4. President, treasurer and secretary.] § 4. The directors 
shall elect from their number a president and a treasurer, and shall 
also elect a secretary, who may or may not be a member of the 
•company, all of whom shall hold their office for one year, and un- 
til their successors are elected and qualified. 

5. Bonds.] § 5. The treasurer and secretary shall each give 
bonds to the company for the faithful performance of their duties, 
in such amounts as shall be prescribed by the board of directors. 

6. Corporate powers.] § 6. Such corporation and its directors 
shall possess the usual powers and be subject to the usual duties 
of corporations and directors thereof, and may make such by-laws, 
not inconsistent with the constitution or laws of this state, as may 
be deemed necessary for the management of its affairs, in accord- 
ance with the provisions of this act ; also to prescribe the duties 
of its officers and fix their compensation, and to alter and amend 
its by-laws when necessary. 

7. Members, j § 7. Any person owning property in the district 
for which any such company is formed, if he resides in the county 
in which such district is in whole or in part situated, may become 
a member of such company by insuring therein, and shall be enti- 
tled to all the rights and privileges appertaining thereto ; but a 
person not residing within the district for which the company is 
formed shall not become a director of such company. 

8. Manner of insuring.] §8. Such company may issue poli- 
cies only on detached dwellings, barns (except livery, boarding and 
hotel barns), and other farm buildings and such property as may 
properly be contained therein, for any time not exceeding five 
years, and not to extend beyond the limited duration of the char- 
ter, and for an amount not to exceed $3,000 on any one risk. All 
persons so insured shall give their obligation to the company, 
^binding themselves, their heirs and assigns, to pay their pro rata 
share to the company of the necessary expenses and of all losses 



278 TOWNSHIP INSUBANCE COMPANIES. [DIV. VL- 

by fire or lightning which may be sustained by any member there- 
of, during the time for which their respective policies are written ; 
and they shall, also, at the time of effecting the insurance, pay 
such percentage in cash, and such other charge as may be required 
by the rules or by-laws of the company. 

9. Risks classified.] § 9. Any such company may classify the 
property insured therein at the time of issuing policies thereon, 
under different rates, corresponding as nearly as may be to the 
greater or less risk from fire or lightning, and loss, which may at- 
tach to each several building insured. 

10. When company not to insure.] § 10. No such company 
shall insure any property beyond the limits of the district com- 
prised in the formation of the company, nor shall they insure any 
property within the limits of any city containing over 12,000 in- 
habitants at the time of the organization of such company. 

11. Notice of loss— Adjustment— Expense.] § 11. Every mem- 
ber of such company who may sustain loss or damage by fire or 
lightning shall immediately notify the president of such company, 
or in his absence the secretary thereof, stating the amount of dam- 
age or loss claimed, and if not more than fifty dollars ($50), then the 
president and secretary shall proceed to ascertain the amount of 
such loss or damage and adjust the same. If the claim for damage 
or loss shall be an amount greater than fifty dollars ($50), then the 
president of. such company, or in case of his absence the secretary 
thereof, shall forthwith convene the directors of such company, 
whose duty it shall be when convened to appoint a committee of 
not less than three members of such company to ascertain the 
amount of such damage or loss. If in either case there is a failure 
of the parties to agree upon the amount of such damage or loss, 
the claimant may appeal to the judge of the county court of the 
county in which the office of such company is located, whose duty 
it shall be to appoint three persons as a committee of reference, 
who shall have full authority to examine witnesses and to deter- 
mine all matters in dispute and shall make their award in writing to 
the president of such company, and such award shall be final. The 
pay of said committee shall be two dollars ($2.00) per day for each 
day's service so rendered, and four cents for each mile necessarily 
traversed in the discharge of their duties, which shall be paid by 
the claimant, unless the award of said committee shall exceed the 
sum offered by the company in liquidation of such loss or damage, 
in which case said expenses shall be paid by the company. [As 
amended, Laws 1877, p. 127. 

12. Assessments.] § 12. Whenever the amount of any loss 
shall have been ascertained, which exceeds in amount the cash 
funds of the company, the president shall convene the directors of 



DIY. VI.] MANAGEMENT. 279 

said company, who shall make an assessment upon all the property 
to the amount for which each several piece of property is insured, 
taken in connection with the rate of premium under which it may 
be classified. 

13. Notice of assessment] § 13. It shall be the duty of the 
president, whenever such assessment shall have been made, to im- 
mediately notify every person composing such company, person- 
ally, by an agent or by letter sent to his usual post office address, 
of the amount of such loss, and the sum due from him as his share 
thereof, and of the time when and to whom such payment is to be 
made ; but such time shall not be less than thirty nor more than 
ninety days from the date of such notice. 

14. Suits.] § 14. Suits at law may be brought against any 
member of such company who shall neglect or refuse to pay any 
assessment made upon him by the provisions of this act ; and the 
directors of any company so formed, who shall willfully refuse or 
neglect to perform the duties imposed upon them by the provis- 
ions of this act, shall be liable, in their individual capacity, to the 
person sustaining such loss. Suits at law may also be brought and 
maintained against any such company, by members thereof, for 
losses sustained, if payment is withheld after such losses have be- 
come due. 

15. Annual statement] § 15. It shall be the duty of the sec- 
retary to prepare an annual statement, showing the condition of 
such company on the thirty-first day of December, and present the 
same at the annual meeting. 

16. Withdrawal from company.] § 16. Any member of such 
company may withdraw therefrom by surrendering his policy for 
cancellation, at any time while the company continues the business 
for which it was organized, by giving notice in writing to the Sec- 
retary thereof, and paying his share of all claims then existing against 
said company : Provided, that by the withdrawal of any such member, 
the number of the members remaining in the company shall not 
be reduced below the original number of corporators, or that the 
assets will not be reduced below the amount at the time of the or- 
ganization : Provided further, that the company shall have power 
to cancel or terminate any policy by giving the insured notice to 
that effect. 

17. Keport to auditor— Certificate— Fees.] § 17. It shall be 
the duty of the president and secretary of every such company on the 
first day of January of each year, or within one month thereafter, 
to prepare, under their own oath, and transmit to the auditor of 
public accounts, a statement of the condition of the company on 
the thirty-first day of December then next preceding, in such form 
as the auditor may direct. If, upon examination, he is of the 



280 TOWNSHIP INSURANCE COMPANIES. [DIV. VI. 

opinion that such company is doing business correctly, in accord- 
ance with the provisions of this act, he shall thereupon furnish the 
company his certificate, which shall be deemed authority to con- 
tinue business the ensuing year, subject, however, to subsequent 
provisions of this act. For such examination and certificate the 
company shall pay $1. Each company shall pay, at the time of 
organization, $10 for the auditor's services, all of which shall be 
paid into the state treasury and applied to the insurance fund.(l.) 

18. Dissolution.] § 18. Any such company may be proceeded 
against and dissolved in the manner and upon the same conditions 
as provided in case of other insurance companies incorporated in 
this state. 

19. Companies formed under act of 1872.] § 16. Any town- 
ship insurance company formed under an act entitled "An act to 
incorporate and govern mutual fire insurance companies in town- 
ships," approved April 3, 1873, with the written consent of two- 
thirds of the members, accept the provision of this act, and there- 
upon shall be governed by its provision. Before any such com- 
pany shall be entitled to the benefits thereof, the directors, or a 
majority of them, shall file with the auditor of public accounts the 
declaration provided for in section 2 of this act. 

(1) The auditor could iu a proper case terminate the power of the company under 
the above section, to continue business, by simply refusing to grant the certificate of renewal. 
Opinion of Att'y Gen. Edsall, 



DIY. VII.] PROPERTY LIABLE TO TAXATION. 281 



DIVISION VII. 

REVENUE. 

AN ACT for the assessment of property and for the levy and collection of taxes [Approved 
March 30, 1872. In 'force July 1, 1872. Rev. Stat., Ch. 120.] 

PBOPERTY LIABLE TO TAXATION. 

Section. 

1. Taxable property. 

1. Taxable property.] § 1. That the property named in this 
section shall be assessed and taxed, except so much thereof as may 
be, in this act, exempted :(1) 

(1) The constitution of Illinois declares, Art. 9, Sec. 1. The General Assembly shall pro- 
vide such revenue as may be needful, by levying a tax, by valuation, so that every person and 
corporation shall pay a tax in proportion to the value of his, her or its property— such value to 
be ascertained by some person or persons, to be elected or appointed in such manner as the 
General Assembly shall direct, and not otherwise ; but the General Assembly shall have power 
to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, 
jugglers, inn-keepers, grocery-keepers, liquor dealers, toll bridges, ferries, insurance, telegrpph 
and express interests or business, venders of patents, and persons or corporations owning or 
using franchises and privileges, in such manner as it shall, from time to time, direct by general 
law. uniform as to the class upon which it operates. 

Sec. 2. The specification of the objects and subjects of taxation shall not deprive the General 
Assembly of the power to require other subjects or objects to be taxed, in such manner as may 
be consistent with the principles of taxation fixed in this constitution. 

The rule of uniformity and equality of taxation prescribed by the constitution 
must be applied not only to the rule of taxation, and to the district taxed, but also to all the 
property subject to taxation. Primm v. City of Belleville, 59 111. R., 142 ; Lee v. Buggies, 62 111. R., 
427 : Chicago & A. B. B. Co. v. Livingston, 68 111. R., 458. 

The principles of " equality " and " uniformity " are indispensible to all legal tax- 
ation, general or local. City of Chicago v. Lamed et al., 34 111. R., 203. The rule of uniformity of 
taxation prescribed in the constitution, requires that one person shall not be compelled to pay a 
■greater proportion of the taxes, according to the value of his property, than another. Bureau 
County v. Chicago etc. B. B. Co., 44 111. R., 230. Under this rule, a portion of the citizens of a town 
could not be exempted from road taxes while the burden is imposed on others. O'Kane v. Treat 
et al., 25 111. R., 557. But a tax imposed on a corporation as such, is not a tax on the person or 
property of the corporation or stockholders. Ducat v. City of Chicago, 48 111. R. 173. 

The right to tax is vested in the legislature, which possesses plenary power, except 
so far as it may be restricted by the constitution of the State or the United States, and it rests 
with those who allege the unconstitutionality of an act of the legislature to show clearly and 
palpably wherein it violates the constitution. Porter et al. v. B. B. I. & St. L. B. B. Co.,'76 111. 
R., 561. 

The taxing power is legislative and political in its nature, and is not under the 
judicial power of the State, and the courts cannot interfere unless the tax is void, because levied 
without power on the part of the officer executing the revenue laws. Ottawa Glass Co. v.McCaleb 
€te.,81Ill.R.,462. 

Unless the power to tax clearly appears from the law, it cannot be exercised, but 
the courts will not pervert language from its ordinary and plain signification, and resort to a 
forced and unnatural interpretation to come to the meaning of the law; and if from an exami- 
nation of all the language of the law applicable to the subject, it is clear that it was intended the 
power of taxation should be exercised, it is sufficient. Fislier v. The People, 84 111. R., 491. 

The great principle of natural justice demands that all who have the right to com- 
mand and employ the sovereign power of the State to protect them in their rights, should 
contribute to the expenses of the government. The rule embraces corporations or intangible 
persons as well as natural persons. Bepublic Life Ins. Co. v. Pollock et al., 75 111. R., 297. 

Taxes are denned as feeing the enforced proportional contribution of persona 
and property, levied by the authority of the State for the support of the government, and for all 
public needs. Cooley on Taxation, p. 1. 

The term " property," wherever used in this act, is held to include every tangible 
thing, being the subject of ownership, whether animate or inanimate, real or personal. Cleghom 
v. Postlewaite, 43 111. R., 437. 



282 REVENUE. [DIV. VII. 

First — All real and personal property in this state. 

Second — All moneys, credits, bonds or stocks and other invest- 
ments, the shares of stock of incorporated companies and associa- 
tions, and all other personal property, including property in tran- 
situ to or from this state, used, held, owned or controlled by persons 
residing in this state. 

The term personal property, applies as well to notes and moneys as to goods and 
chattels; the possession of which is prima facie evidence of ownership. Brownell v. Dixon, 37 111. 
R., 197. 

County orders and county bonds are subject to taxation. Opinion Auditor Miner* 
April 2, 1867; June 13, 1868. 

Money loaned or on deposit in a bank, or a note secured by mortgage, are sub- 
ject to taxation. Opinion Auditor Miner, June 10, 1868; Trustees, etc. v. McConnell, 12 111. R., 138". 
People v. Wortldngwn, 21 111. R., 171. 

Shares of joint stock companies owned in this State are liable to assessment and 
taxation under the laws of this State, whether such companies are located in this State or not. 
Opinion Auditor Miner, July 25, 1867; See Inhabitants Great Barrington v. Commissioners Berkshire 
County. 16 Pick. R., 572. 

Bonds that are void cannot be rendered valid by assessment and payment of taxes on them. 
Marshall Co. v. Cook, 38 111. R, 58. 

In case of an agreement in writing, wherein A. agrees to convey to B. certain lands 
on the payment of a stipulated sum, and B. had paid a portion, the amount paid had been as- 
sessed, and the board of reviewers had ordered said assesment to be stricken from the list, 
deciding that said credits were not taxable; it is the opinion that the board exceeded their 
authority, which is thought to extend only to correction of erroneous valuations. As to whether 
property is taxable, the board ot supervisors proceed under section 33 of this act; therefore the 
assessment should not be stricken from the list on proceedings already had. That the sums pay- 
able by B. are "credits" and subject to taxation, to the extent the owner A. believes will be re- 
ceived, or can be collected. See § 3, Opinion Auditor Miner, Jan. 5, 1867, 

The consideration received on sale of land, whether money or notes, must be taxed, 
notwithstanding the land is still taxed. Opinion Auditor Miner, April 18, 1867; People v. Worth- 
ington, 21 111. R., 171. 

For the purpose of taxation, the law regards lands and improvements as a whole,, 
except for obtaining a correct valuation. When the valuation is ascertained, and tax charged, 
it is against the tract or lot, including improvements. If sold for the tax, all is sold together. 
Arrangements between lessor and lessee are not to be considered by the revenue officers. Opinion 
Auditur Miner, April 30, 1867. But where a building is set on posts to denote its temporary con- 
dition, under a provision in the lease to remove it, it is held to be personal property. Ballou v. 
Jones et al.. 37 111. R., 94; see also Titus et at. v. Mabee et al., 25 111. R., 257. 

Warehouses and other buildings on railroad lands, under lease, are taxable as 
separate property. Opinion Auditor Miner, May 21, and June 19, 1867. 

Moneys and credits of all persons in this State are taxable in this State without 
reference to the temporary location thereof. Opinion Auditor Miner, April 13, 1867. 

"While the transient visit of a person for a time at a place may not make him a 
resident while there, yet, if he has a regular and permanent business there, such as the loaning 
of money for himself and others, and remains there continuously for a time sufficiently extended 
to enable him to transact that business, which is his only known business or occupation, thatwill 
be regarded as his place of residence, so as to subject his own moneys and credits, employed in 
such business, and also the moneys and credits of other persons who may reside out of this State, 
but which are used and controlled by him as their agent, to taxation at such place, if in this 
State; and this although he may at the same time have a home or domicile in another State, 
where he also resides during certain limited portions of the year. Tazewell Co. v. Davenport, 40 
111. R, 197. 

An assessment, commonly called special assessment for street improvement in a 
city, is not a tax, and the same rules applicable to one do not necessarily applv to the others. 
City of Chicago v. Colby, 20 111. R., 614; Canal Trustees v. City of Chicago, 12 111. R., 406. 

In the construction of statutes, it -will never be presumed that the legislature 
intended to abandon its rights as to the mode of assessing and collecting the State revenue. Bank 
of the Republic v. Hamilton County, 27 111. R., 54. 

The jurisdiction of the State, on the subject of taxation for State purposes, is su- 
preme, over which the government of the United States can have no power or control. State 
Treasurer v. Collector of Sangamon County, 28 111. R., 512; The People v. Bradley et al, 39 111. R., 
130. But the federal constitution limits the power of taxation by a State in express terms as to 
imports and exports, and by implication, as to those instruments employed by the general gov- 
ernment to carry out its authority, as government bonds, and the operation of such instruments. 
The People v. Bradley el al., 39 111. R., 130. 



DIV. VII.] PROPERTY EXEMPT FROM TAXATION. 283 

Third — The shares of capital stock of banks and banking 
companies doing business in this state. 

Fourth — The capital stock of companies and associations incor- 
porated under the laws of this state. [See Const., Art. 9, § 1. 

PROPERTY EXEMPT FROM TAXATION. 

Section. 

2. Exempt property. 

2. Exempt property.] § 2. All property described in this sec- 
tion, to the extent herein limited, shall be exempt from taxation, 
that is to say(l) — 

First — All lands donated by the United States for school pur- 
poses, not sold or leased. All public school houses. All prop- 
erty of institutions of learning, including the real estate on which 

A law of a State including steamboats as a portion of the property of an individual 
subject to state taxation, is valid. It does not interfere with the power of Congress to regulate 
commerce, nor is it a tonnage duty. Perry v. Torrence, 8 Ohio R., 521. 

A sum. of money, certain to be received annually and at stated periods, is within the 
meaning of the tax law, an annuity, unless the same be receivable as a pension, a salary, or as 
compensation for labor of services subsequently to be performed. Wetmore v. State, 18 Ohio R., 77. 

The term "investment in stocks," embraces within its meaning shares in the 
capital stock of banks and banking associations, and includes as well shares in the capital stock 
of national banks. The People v. Bradley et at., 39 111. R., 131. 

(1) Under the constitutional provision requiring all taxes to be imposed equally 
upon the property of persons and corporations, exemptions from such burdens are to be con- 
strued strictly and not extended by judicial construction to embrace other property than is 
plainly expressed in the law. People ex rel. v. Seaman's Friends' Society, 87 111. R., 246. 

Laws exempting property from taxation, being in derogation of equal rights should 
be construed strictly; therefore, held, that property mentioned as exempt, is only exempt from 
taxation when used exclusively for the purposes mentioned. If used for other purposes, it is li- 
able to taxation, no matter what purposes the proceeds are in future to be applied. Cincinnati 
College v. State, 19 Ohio R., 110. 

When an exception as to the burden of taxation is made in favor of a corporation, 
justice demands that it should show clearly a compliance with the terms and spirit of the act 
exempting it from taxation before it can be permitted to escape a duty incumbent equally upon 
every citizen. People ex rel. v. Graceland Cemetery Co., 86 111. R., 336. 

Whilst courts of equity will in many cases enjoin the collection of a tax sought 
to be enforced against property exempt from taxation, they will not enjoin the collection of the 
whole tax, because in determining the valuation of an aggregate property, exempt property may 
have been included as a factor. Huck et al. v. Chicago & Alton R. P. Co., 86 111. R., 352. 

United States government bonds and notes are exempt from taxation under state 
authority. Bank v. Supervisors, 7\Vallace R.. 26. But the income derived therefrom, if it is in 
money or other taxable property, is subject to taxation. Opinion Att'yGen. Edsall, June 12,1873. 

Horses and carriages carrying the mail of the United States, if owned by the govern" 
ment, are exempt from taxation, but not so if owned by individuals. Opinion Auditor Miner, 
June 27, 1867. 

Corn, wneat, oats and other field products, and beef, pork and other articles of provisions, are 
not exempt from taxation. Opinion Auditor Miner, Jan. 7, 1867. 

It is within the constitutional power ot the legislature to exempt property from 
taxation, or to commute the general rate for a fixed sum. Illinois Central Railroad Co. v. County. 
of McLean. 17 m. R., 293. But not so in regard to persons or class of persons. Hunsacker et al. v. 
Wright et al, 30 HI. R., 146; a Kane v. Treat etal., 25 111. R., 561. 

The assessment of public taxes, or special assessment for public improvements upon the 
puolic property of the State, county or municipal corporations, is a mere question of policy. The 
power exists to make it bear its share of the one or the other. It may be exempt from the one 
and subjected to the other. Canal Trustees v. City of Chicago, 12 HI. R„ 405; Ross v. Mayor of New 
York, 3 Wend. R., 335; cited and sustained in case of Higgins v. City of Chicago, 18 111. R.. 280. 

"When an officer assesses and values property exempt from taxation, he acts without 
authority, and all his acts in excess of his power are void. Republic Life Ins. Co. v. Pollak et al~ 
75 111. R., 295. 



284 REVENUE. [DIV. VIE. 

the institutions are located, not leased by such institutions or 
otherwise used with a view to profit. (1) 

Second — All church property actually and exclusively used for 
public worship, when the land (to be of reasonable size for the 
location of the church building) is owned by the congregation.(2) 

Third — All lands used exclusively as grave yards or grounds 
for burying the dead. 

Fourth — All unentered government lands ; all public buildings 
or structures of whatsoever kind, and the contents thereof, and 
£he land on which the same are located, belonging to the United 
States. 

Fifth — All property of every kind belonging to the state of 
Illinois.© 

Sixth — All property belonging to any county, town, village or 
city, used exclusively for the maintenance of the poor. All 

(1) Concerning exemption of school property the constitution of 1848, empow- 
ered the General Assembly to exempt from taxation such property as they might deem neces- 
sary " for school purposes." In this respect it differs from the present constitution, which limits 
such right of exemption to lands " used exclusively for school purposes." 

Under the provisions of the constitution of 1848. the legislature granted a charter to the North- 
western University, and provided in the charter that all property belonging to or owned by the 
corporation should be exempt from taxation. Held, that this charter was a contract which could 
not be impaired by subsequent legislation, had under the constitution of 1870, limiting the ex- 
emption jt'rom taxation to such property as was actually used for school purposes. The Noith- 
tuestern University v. The People ex rel. Miller, Sup. Ct. U. S.; Chicago Legal News, April 19, 1879. Re- 
versing same case, 80 111. R., 333. 

No provision of law is known exempting school lands from taxation, which have 
reverted on fore'closure of mortgage. Opinion Auditor Dubois, May 7, 1864. 

In order to exempt a school house from taxation, it should be held by the school 
directors under such title as will give them the right to possess and control it at all times for the 
use of the district. Pace v. County Commissioners of Jefferson Co., 20 111. R., 644. 

If a seminary is established as such toy law, the lot on which it stands is not taxable. 
But if a private school, although called a "seminary," conducted for private gain or profit, it is 
not exempt from taxation. Opinion Auditor Miner, Feb. 14, 1868. 

(2) All church property actually and exclusively used for public worship, when the 
land is owned by the congregation, is exempt from taxation, the land to be of reasonable size 
for the location of the church. The buildings must be used exclusively for sacred and not for 
secular purposes. Trustees M. E. Church v. Chicago, 26 111. R., 482. The lot upon which a parson- 
age stands is subject to taxation. Opinion Att'y Gen. Edsall, March 17, 1873. A parsonage owned 
by a church is not exempt from taxation. Opinion Auditor Miner, April 11, 1867 ; Lippincott, 
I)ec. 22, 1869; St. Peters Church v. Commissioners Scott Co., 12 Minn. R., 395. 

In regard to houses used for public worship, the intent of the law exempting them 
is, that they shall be used for sacred purposes and not otherwise. That part so used may be ex- 
empt, and portions otherwise used may be taxed. First M. E. Church v. City of Cliicago, 26 ni. 
R., 487. 

Church property may toe assessed for special purposes, though not liable for ordi- 
nary taxes. City of Ottawa v. Fisher et al., 20 111. R., 423; The Trustees of the Fllinois and Michigan 
Canal v. The City of Chicago, 12 111. R., 403. 

(3) Real estate owned toy the State is not subject to taxation for state, county or 
municipal purposes, nor can it be legally assessed or sold for special assesxments for local im- 
provements in cities. See case Taylor v. The People ex rel., Sup. (Jt. Ill , Sept. Term, 1872. 
Opinion Att'y Gen. Edsall, March 12, 1873. 

It is only the property owned by the State that is exempt from taxation, not that in which it 
may ultimately share in avails. Ryan v. Gallatin County. 14 111. R., 83. 

The constitution of Illinois concerning exemption, declares : Art. 9, Sec. 3. The 
property of the State, counties and other municipal corporations, both real and personal, and 
such other property as may be used exclusively for agricultural and horticultural societies, for 
schools, religious, cemetery and charitable purposes, may be exempted from taxation ; but such 
exemption shall be only by general law. In the assessment of real estate, incumbered by pub- 
lic easement, any depreciation occasioned by such easement, may be deducted in the valuation 
of such property. 



DIV. TIL] . VALUING PEESONAL PEOPERTY. 285 

swamp or overflowed lands belonging to any county, so long as 
the same remain unsold by such county. All public buildings 
belonging to any county, township, city or incorporated town^ 
with the ground on which such buildings are erected, not ex- 
ceeding in any case ten acres. (1) 

Seventh — All property of institutions of purely public charity, 
when actually and exclusively used for such charitable purposes,, 
not leased or otherwise used with a view to profit ; and all free 
public libraries. 

Eighth — All fire engines and other implements used for the ex- 
tinguishment of fires, with the building used exclusively for the 
safe keeping thereof, and the lot of reasonable size on which the 
building is located, when belonging to any city, village or town. 

Ninth — All market houses, public squares or other public 
grounds used exclusively for public purposes. All works, ma- 
chinery and fixtures belonging exclusively to any town, village 
or city, and used exclusively for conveying water to such town, 
village or city. 

Tenth — All property which may be used exclusively by socie- 
ties for agricultural, horticultural, mechanical and philosophical 
purposes, and not for pecuniary purposes.(2) 

EULES FOE VALUING PEESONAL PEOPEETY. 
Section. 

3. Personal property. 

3. Personal property.] §3. Personal property shall be valued 
as follows :(3) 

(1) The exemption of swamp lands from taxation ceases when sold by the county, 
and it is presumed that such lands reverting on foreclosure of mortgage would nut be exempt 
under the law. Opinion Auditor Miner, May 13, 1667. 

(2) Iiand to l>e exempt must toe owned by the society or used by it without any 
compensation to the owner. It must be used exclusively for the purposes for which the society 
was created. The organization must not contemplate any pecuniary profit to its individual 
members. The land must not be used for purposes other than those incident to the legitimate 
work of the society even though the profits arising from such outside us-e are to be applied to 
the furtherance of such work. Any lands or other property owned by the society, not used in 
its legitimate work, even though lying idle and not producing revenue, should be assessed. 
Opinion Auditor Needles, May 25, 1878. 

(3) The legislature cannot make a discrimination in favor of personal property. The 
burden must be imposed upon all the property within the limits taxed. Primm v. City of Belle- 
ville, 59 111. R., 142. 

It is indispensable, to support a levy or assessment of taxes, that there be a valu- 
ation of the property. Town of Lebanon et al. v. Ohio & Miss. E. Co., 77 111. R-, 539. 

It is made the duty of assessors, and State Board of Equalization, so far as 
charged with that duty, to assess all personal property at its " fair cash value," and all real 
estate at a "price it would bring at a iair voluntary sale," so that every person or corpora- 
tion shall pay a tax in proportion to his or its property. Lavj et al. v. The People, 87 ID. R., 385. 

The first cost of property is no evidence of its valne. C. & N. W. E. E. Co. v. 
Boone County, 44 111. R., 241. 

In valuing property the assessor has no right to discriminate for or against any class of 
property. The only driterion known to the law is the actual money worth of the property. Opin- 
ion Auditor Miner, May 28, Sept. 25, 1868, May 29, 1867. And this may be on a "green- 
back" basis, so called. Opinion Auditor Miner, May 21, 1866. 



286 KEVENUE. [DIY. YII. 

First — All personal property, except as herein otherwise di- 
rected, shall be valued at its fair cash value. 

Second — Every credit for a sum certain, payable either in money 
or labor, shall be valued at a fair cash value, for the sum so pay- 
able ; if for any article of property, or for labor or services of 
any kind, it shall be valued at the current price of such property, 
labor or service. 

Third — Annuities and royalties shall be valued at their then 
present total value. (1) 

Fourth — The capital stock of all companies and associations 
now or hereafter created under the laws of this state, (except 
those required to be assessed by the local assessors, as hereinafter 
provided) shall be s6 valued by the State Board of Equalization as 
to ascertain and determine, respectively, the fair cash value of such 
capital stock, including the franchise, over and above the assessed 
value of the tangible property of such company or association. Said 
board shall adopt such rules and principles for ascertaining the 
fair cash value of such capital stock, as to it may seem equitable 
and just ; and such rules and principles, when so adopted, if not 
inconsistent with this act, shall be as binding and of the same 
effect as if contained in this act, subject, however, to such change, 
alteration or amendment as may be found, from time to time, to 
be necessary by said board : Provided, that in all cases where 
the tangible property or capital stock of any company or associa- 
tion is assessed under this act, the shares of capital stock of any 
such company or association shall not be assessed or taxed in this 
state. This clause shall not apply to the capital stock, or shares 
of capital stoek, of banks organized under the general banking 
laws of this state : Provided, further, that companies and associ- 
ations organized for purely manufacturing purposes, or for print- 
ing, or for publishing of newspapers, or for the improving and 
breeding of stock, shall be assessed by the local assessors in like 



Ciioses in action, such as promissory notes, are to be listed at their true value. If a 
note is wholly worthless, it is not to be listed, at all ; if it is of some value, but less than its face, 
it is to be listed at what it is worth. " Exchange Bank Columbus v. Hines, 3 Ohio State R., 1. 

Under a law providing " for taxing all property in this State according to its true value," 
Held, that capital invested in the business of purchasing hogs and slaughtering and packing 
pork for sale or transportation, is subject to taxation. Jackson v. Steele, 15 Ohio R., 652. 

One portion of the tax payers of a county cannot be required to pay more taxes in 

Sroportion to its value than another portion in the same county, and a discrimination cannot 
e made in this regard against the property of a railroad company, and although property is 
assessed at a low rate, still uniformity must be observed. C. & N. W. R. R. Co. v. Boone County, 
44 111. R„ 240. 

(1) The third section of the revenue act requiring that the capital stock of all com- 
panies and associations created under the laws of this State, shall be so valued by the State 
Board of Equalization as to ascertain and determine, respectively, the fair cash value of such 
capital stock, including the franchise, over and above the assessed value of the tangible property 
of such company or association being a general law, and uniform as to the class upon which it 
operates, is not in violation of any constitutional provision. Porter et al. v. R. R. I. & St. L. R. 
. R. Co., 76 111. R., 56L 



DIV. yil] listing personal peoperty. 287 



manner as the property of individuals is required to be assessed.(l) 
[As amended, 1879. 

RULES FOR VALUING REAL ESTATE. 

Section. 

4. Real property. 

4. Real property,] '§ 4. Eeal property shall be valued as fol- 
lows :(2) 

First — Each iract or lot of real property shall be valued at its 
fair cash value, estimated at the price it would bring at a fair, 
voluntary sale. 

Second — Taxable leasehold estates shall be valued at such a 
price as they would bring at a fair, voluntary sale for cash. 

Third — When a building or structure is located on the right of 
way of any canal, railroad or other company leased or granted for 
-a term of years to another, the same shall be valued at such a 
price as such building or structure and lease or grant would sell at 
a, fair, voluntary sale for cash. 

Fourth — In valuing any real property on which there is a coal 
or other mine, or stone or other quarry, the same shall be valued 
at such a price as such property, including the mine or quarry, 
would sell at a fair, voluntary sale for cash. 

PERSONAL PROPERTY — WHEN LISTED. 
Section. 

5. Time to list. 

5. Time to list.] § 5. Personal property shall be listed be- 
tween the first day of May and the first day of July of each year, 
when required by the assessor, with reference to the quantity held 
•or owned on the first day of May, in the year for which the prop- 
erty is required to be listed. Personal property purchased or 

(1) "Where the tangible property or capital stock of a corporation (excepting 
banks organized under the general law) is assessed, the shares of stock of the corporation can- 
not be assessed to the owners. Republic Life Ins. Co. v. Pollack et al., lb 111. R., 300. 

The legal property of the shareholder in a corporation is quite distinct from that 
of the corporation, although the shares of stock have no value save that which they derive from 
the corporate property and franchise ; and a tax levied upon the property of the one is not, in 
any legal sense, levied upon the property of the other. A tax upon the capital stock and fran- 
chise of a corporation is not a tax upon the shares of the shareholders. Porter et al. v. B. B. I. & 
St. L. B. B. Co., 76 111. R., 561. 

In assessing the value of a railroad for purposes of taxation, the inquiry should 
be, what is the property worth, to be used for the purposes for which it was designed, and not 
for. any other purposes to which it might be applied, and in all cases it is proper to consider what 
would a prudent inan give for the property as a permanent investment, with a view to present 
and future income, and the assessment should be at its present and not future value. State of 
Illinois v. Illinois Central Bailroad Co., 27 111. B.., 70. 

(2) The withdrawal of real estate from the limits of a municipal corporation 

and from the power of taxation by the municipality, after such corporation has incurred a large 
indebtedness which must be paid by taxation, is in violation of the constitutional provision re- 
garding uniformity as the basis of taxation both in respect to persons and to property, unless 
the act of disconnecting territory is attended with some corresponding benefit to the munici- 
pality. City of Galesburg v. Hawkinson et al., 75 111. K,., 152. 



EEVENUE. [DIV. VIL 



acquired on the first day of May shall be listed by or for the per- 
son purchasing or acquiring it. 

WHO SHALL LIST AND WHAT LISTED. 
Section. 

6. Manner of listing. 

6. Manner of listing.] § 6. Personal property shall be listed 
in the manner following :(1) 

First — Every person of full age and sound mind, being a resi- 
dent of this state, shall list all his moneys, credits, bond's or 
stocks, shares of stock of joint stock or other companies, (when 
the capital stock of such company is not assessed in this state), 
moneys loaned or invested, annuities, franchises, royalties, and 
other personal property. 

Second — He shall also list all moneys and other personal prop- 
erty invested, loaned or otherwise controlled by him as the agent 
or attorney, or on account of any other person or persons, com- 
pany or corporation whatsoever, and all moneys deposited, sub- 
ject to his order, check or draft, and credits due from or owing 
by any person or persons, body corporate or politic. [See § 19. 

Third — The property of a minor child shall be listed by his 
guardian ; if he have no guardian, then by the father, if living ; 
if not, by the mother, if living ; and if neither father nor mother 
be living, by the person having such property in charge. 

Fourth — The property of an idiot or lunatic, ,by his conserva- 
tor ; or if he has no conservator, by the person having charge of 
such property. 

Fifth — The property of a wife by her husband, if of sound 
mind ; if not, by herself. 

Sixth — The property of a person for whose benefit it is held 
in trust, by the trustee ; of the estate of a deceased person, by 
the executor or administrator. 

(1) Taxes may toe imposed upon persons engaged in the classes of tousiness, or 

exercising the callings specified in first section of Art. IX, of the Constitution, entitled Revenue, 
by license, or a tax upon receipts, or in such manner as the General Assembly may see fit to 
provide by general law, uniform as to each class of interest taxed. Capital invested otherwise 
than in some business or interest specified in the latter branch of that section, can only be taxed 
by valuation. Opinion Att'y Gen. Edsall, Jan. 23, 1877. 

Tne intention of ttoe revenue law is tliat all property controlled by a resident 
of this State, as agent or attorney, or on account of any other person or persons, company or 
corporation, should be listed by him and assessed in the township or district in which he resides ; 
the obvious reasons being : 

First— That the property would be "in sight" in that district, and hence less liable to escape 
taxation ; and, secondly— even though the actual owner should list it at his residence, his assessor 
would not have an opportunity to arrive at its fair cash value by actual inspection. The regu- 
lar steps, as indicated by the law, are as follows : 

The second clause of section 6 makes it the duty of the person who controls to list the prop- 
erty for taxation. Section 9 prescribes the place at which it shall be assessed. Section 19, time 
when listed and manner of listing. Section 254 creates a lien for the tax upon the personal 
property of the person assessed (i. e. the agent). See 73, 111. R., 125, and section 256 creates a lien 
upon the property assessed in favor of the agent, until he is indemnified against the payment 
of the tax. Opinion Auditor Needles, June"~6th, 1878. 



DIV. til] listing pelsonal property. 2S9 

Seventh — The property of corporations whose assets are in the 
hands of receivers, by such receivers. 

Eighth — The property of a body politic or corporate, by the 
president, or proper agent or officer thereof. 

Ninth — The property of a firm or company, by a partner or 
agent thereof. 

Tenth — The property of manufacturers and others in the hands 
of agent, by and in the name of such agent, as merchandise. 

WHERE LISTED AND ASSESSED, AND WHAT HELD TO BE PERSONAL 
PROPERTY — MANNER OF LISTING. 
Section. 

7. Where personal property listed. 

8. Farm property — Owner not residing on farm. 

9. Of manufactures in hands of agents. 

10. Purchaser's interest in exempted lands, personalty. 

11. In transitu. 

12. Nursery stock. 

13. Personal property of banks and others. 

14. The personal property of gas and coke companies. 

15. The personal property of street railroad, plank road, etc. 

16. The horses, stages and other personal property of stage companies. 

17. The personal property of express or transportation companies. 

18. Consignee only his interest. 

19. Listing on behalf of others. 

20. Interest on bonds. 

21. Money secured by deed. 

22. Removing — W here owner assessed. 

23. How place of listing fixed. 

24. Schedule. 

7. Where personal property listed.] § 7. Personal property, 
except such as is required in this act to be listed and assessed 
otherwise, shall be listed and assessed in the county, town, city, 
village or district where the ow r ner resides. The capital stock 
and franchises of corporations and persons, except as may be 
otherwise provided, shall be listed and taxed in the county, town, 
district, city or village where the principal office or place of busi- 
nes of such corporation or person is located in this state. If 
there be no principal office or place of business in this state, then 
at the place in this state where any such corporation or per- 
son transacts business.(l) 

(1) A listing of the capital stock of a company or association created under the laws 
of this State, including its iranchises, either by the corporation or the local assessor, is not an 
essential prerequisite to its valuation by the State Board of Equalization, and such valuation, 
■without such listing and returns thereof made, will not render a tax levied thereon void. Pa- 
cific Hotel Co. v. Lieb et al., S3 111. E., G02. 

The local assessor is not required to fix any valuation on the capital stock of 
corporations and associations, but the matters required to be returned by him are merely such 
as the law deems to be important in enabling the State B'lard to discharge its duty intelli- 
gently. If such returns are regarded fraudulent or untrustwoithy by the Board, they may en- 
tirely disregard them, and make the valuation from other sources supposed to be more accurate 
and reliable. Pacific Hotel Co. v. Lieb et al., 83 11L E., 602. 

19 



290 REYENUE. [DIV. VII. 

8. Farm property— Owner not residing on farm.] §8. When 
the owner of live stock or other personal property connected 
with a farm does not reside thereon, the same shall be listed and 
assessed in the town or district where the farm is situated : Pro- 
vided, if the farm is situated in several towns or districts, it shall 
be listed and assessed in the town or district in which the prin- 
cipal place of business on such farm shall be. 

The funds and taxable property of insurance companies in the hands of local 
agents, should be assessed at the place where such agents transact their business although the 
company may have a general office in this State. Opinion Att'y Gen'l Eds all. 

Personal properly must toe listed for taxation, in the county, town or district where 
the owner resides, notwithstanding the property itself may remain and be used in another county , 
as in case of farming implements, stock, etc., upon a farm. King et al. v. McDrew et al„ 31 III. R., 
418. Yet if permanently located elsewhere, it may be listed there. Mills, Executor, etc. v. Thorn- 
ton et al., 26 111. K., 300. 

A person cannot clioose where his property shall toe taxed ; this is fixed by law* 
Opinion Auditor Miner, Aug. 17, 1867. 

In regard to taxation in cities and incorporated towns, the place and manner of 
taxation will be regulated by their charters. Opinion Auditor Miner, Aug. 17, 1867; July 22, 
1867; Wilkie v. City of Pekin, 19 111. R., 160. 

It is not necessary that a person to be amenable to the taxing power, should be a citizen of, or 
domiciled within the State; but he must be a resident. There is a distinction in law between 
residence and domicil; and a person may have the former in one State and the latter in another. 
Nor is the liability of taxation placed on the ground of citizenship. Tazewell County v. Daven- 
port, 40 111. R„ 197. 

A person residing in this State, acting as agent for a non-resident, is liable to tax 
as a^ent on securities, taken for money loaned. Opinion Auditor Mm rr, July 25, 1857; Taze- 
well County v. Davenport, 40 111. R., 197. 

Where three executors of an estate reside in the same township — two of them 
within the corporate limits of a village, the other without such limits— and the three have pos- 
session in law of the taxable moneys, credits, bonds and stocks of the estate, the same must, in 
view of the equities and analogies of the statute (which does not expressly provide for such a 
case), be entered for taxation — one-third as of the. place of residence of each executor. And 
this principle would be applicable to a case where the executors resided in different townships. 
State v. Mathews, 10 Ohio State R. 

Merchandise is to toe taxed at the place of business of the merchant, which may 
or may not be his residence. Opinion Auditor Miner, Aug. 7, 1868. And where the same party 
has goods in different localities, carrying on business there, the property should be listed where 
it is located. Opinion Auditor Miner, July 16, 1867. 

The stock or inteiest of a vessel, boat or ship, navigating the waters of this State, 
is taxable where the owner resides, and it is thought that no question concerning the taxation 
can arise which could be carried into the United States courts. Opinion Auditor Miner, July 
20, 1867. The place or situs of a vessel is the place of its registration and port from which it 
regularly departs and returns. Wilkie v. City of Pekin, 19 111. R., 160. 

A lease of lands "belonging to the State, including canal lands, etc., with improve- 
ments, may be taxed, and the interest of the tenant sold. LaSalle Manufacturing Co. v. The City 
of Ottawa, 16 111. R.. 418. 

Leasehold property belonging to the State, should be valued in the assessment, at the price 
the assessor believes can be obtained for trie leasehold, and this should include all rights and 
privileges belonging or in anywise pertaining thereto. Opinion Auditor Miner, July 14, 1868. 

The law requires that persons owning personal property shall make, sign and 
deliver to the assessor a statement of their property subject to taxation. Town of Charlestown v. 
McCrory, 36 111. R., 456. 

The fact that property subject to taxation has not been listed, although it improperly increases 
the burden of taxation upon the property that is listed, does not render the tax wholly void, or 
authorize the interference of a court ot equity. Exchange Bank Columbus v. Hines, 3 Ohio State 
R., 1. 

The assessor has no right to double the assessed value of property belonging to 
the estate of a deceased person on account of any act of the executor. Leper v. Pulsifer, 37 111. 
R., 110. 

When a party makes out and delivers to the assessor a list of his taxable prop- 
erty, which is accepted without question, that officer has no power afterward, of his own mo- 
tion, to alter it without first giving the party assessed notice. If he does a court of equity will 
grant relief by injunction. Cleghotn v. Postlewaite et al., 43 111. R., 431. 

The assessor is to value real estate himself, and need-not give notice thereof to the person 
assessed. Opinion Auditor Miner, May 6, 1867. 



DIV. VII.] LISTING PEESONAL PKOPERTY. 291 

9. Of manufactures in hands of agent.] § 9. The property of 
manufacturers and others, in the hands of agents, shall be listed 
.and assessed at the place where the business of such agent is 
•carried on. [See § 19, 256. 

10. Purchaser's interest in exempted lands, personalty.] § 10. 
When real estate is exempt in the hands of the holder of the fee, 
and the same is contracted to be sold, the amount paid thereon 
"by the purchaser, with the enhanced value of the investment and 
improvement thereon until the fee is conveyed, shall be held to 
be personal property, and listed and assessed as such, in the 
place where the land is situated. 

11. In transitu.] § 11. Personal property, in transitu, shall 
be listed and assessed in the county, town, city or district where 
the owner resides: Provided, if it is intended for a business, it 
•shall be listed and assessed at the place where the property of 
such business is required to be listed. (1) 

12. Nursery stock.] § 12. The stock of nurseries, growing or 
otherwise, in the hands of nurserymen, shall be listed and assessed 
as merchandise. 

13. Personal property of hanks and others.] § 13. The per- 
sonal property of banks or bankers, brokers, stock-jobbers, insur- 
ance companies, hotels, livery stables, saloons, eating houses, mer- 
chants and manufacturers, ferries, mining companies, and companies 
not specifically provided for in this act, shall be listed and assessed 
in the county, town, city, village or district where their business is 
carried on, except such property as shall be liable to assessment 
elsewhere, in the hands of agents. All persons, companies and 
corporations in this state owning steamboats, sailing vessels, wharf 
boats, barges and other water craft, shall be required to list the 
same for assessment and taxation in the county, town, city, village 
or district in which the same may belong or be enrolled, registered 
or licensed, or kept when not enrolled, registered or licensed. 

14.] § 14. Personal property of gas and coke companies ex- 
cept the pipes laid down, shall be listed and assessed in the town, 
village, district or city where the principal works are located. Gas 
mains and pipes, laid in roads, streets or alleys, shall be held to be 
personal property, and listed and assessed as such, in the town, 
district, village or city where the same are laid. 

15.] § 15. The personal property of street railroad, plank road, 
gravel road, turnpike or bridge companies shall be listed and 

(1) A state has no right to tax property in transitn from one State to another 
Across its territory, or upon navigable rivers lying wholly or in part within its borders. A State 
has the right to tax all tangible personal property which has its actual situs within its limits, 
whether owned by residents or non-residents. Taxes on personal property do not become liens 
until the tax books are received by the collector. Opinion Att'y Gen. Edsall, April 16, 1877. 



292 keventje. [div. vn.. 

assessed in the county, town, district, village or city where the 
principal place of business is located. The track, road or bridge 
shall be held to be personal property, and listed and assessed a& 
such, in the town, district, village or city where the same is located 
or laid. 

16.] § 16. The horses, stages and other personal property of 
stage companies or persons operating stage lines, shall be listed 
and assessed in the county, town, city or district where they are 
usually kept. 

17. J § 17. The personal property of express or transportation 

companies shall be listed and assessed in the county, town, 
district, village or city where the same is usually kept. 

18. Consignees only his interest.] § 18. No consignee shall be 
required to list, for taxation, the value of any property consigned 
to him for the sole purpose of being stored or forwarded, except 
to the extent of his interest in such property. 

19. Listing on behalf of others.] § 19. Persons required to 
list property on behalf of others, shall list in the same place in 
which they are required to list their own; but they shall list it 
separately from their own, specifying in each case the name of the 
person, estate, company or corporation to whom it belongs. 

20. Interest on bonds.] § 20. Persons, for themselves or 
others, holding bonds or stocks of any kind, the principal of which 
bonds or stocks has been or may hereafter be exempted from tax- 
ation, shall list the amount of accrued interest on such bonds, 
without regard to the time when the same is to be paid. 

21. Money secured by deed.] § 21. Where a deed for real 
estate is held for the payment of a sum of money, such sum, so 
secured, shall be held to be personal property, and shall be listed 
and assessed as credits. 

22. Removing— Where owner assessed.] § 22. The owner of 
personal property removing from one county, town, city, village or 
district, to another, between the first day of May and the first day 
of July, shall be assessed in either, in which he is first called upon 
by the assessor. The owner of personal property moving into 
this state from another state, between the first day of May and the 
first day of July, shall list the property owned by him on the first 
day of May of such year, in the county, town, city, village or dis- 
trict in which he resides: Provided, if such person has been 
assessed, and can make it appear to the assessor that he is held for 
tax for the current year on the property, in another state, county, 
town, city or district, he shall not be again assessed for said year. 

23. How place of listing fixed.] § 23. In all questions that 
may arise under this act as to the proper place to list personal 



DIV. yil] fobm of schedule. 293 

property, or when the same cannot be listed as stated in this act, 
if between several places in the same county, the place for listing 
and assessing shall be determined and fixed by the county board; 
and when between different counties or places in different counties, 
by the auditor of public accounts ; and when fixed in either case, 
shall be as binding as if fixed by this act. 

24. Schedule.] § 24. Persons required to list personal property 
shall make out, under oath, and deliver to the assessor, at the 
time required, a schedule of the numbers, amounts, quantity and 
quality of all personal property in their possession or under their 
control, required to be listed for taxation by them. It shall be the 
duty of the assessor to determine and fix the fair cash value of all 
items of personal property, including all grain on hand on the first 
day of May and in assessing notes, accounts, bonds and moneys, 
the assessor shall be governed by the same rules of uniformity that 
he adopts as to value in assessing other personal property, and the 
assessor is hereby authorized to administer the oath required in 
this section, and if any person shall refuse to make such schedule un- 
der oath, then the assessor shall list the property of such person 
.according to his best judgment and information and shall add to the 
valuation of such list an amount equal to fifty per cent, of such 
valuation, and if any person making such schedule shall swear 
falsely he shall be guilty of perjury and punished accordingly. 
Any person so required to list personal property who shall refuse, 
neglect or fail when requested by the proper assessor, so to do, 
shall be deemed guilty of a misdemeanor, and on conviction there- 
of shall be fined in any sum not exceeding two hundred dollars, 
and the several assessors shall report any such refusal to the 
county attorney whose duty it is hereby made to prosecute the 
same. [As amended, 1879. 

FOKM OF SCHEDULE. 
Section. 

25. Schedule. 

26. When assessor may examine under oath, etc. 

25. Schedule.] § 25. Such schedule, when completed by the 
assessor in extending in a separate column the value of such prop- 
erty, shall truly and distinctly set forth. 

First — The number of horses of all ages, and the value thereof. 

Second — The number of cattle of all ages, and the value thereof. 

Third — The number of mules and asses of all ages, and the 
value thereof. 

Fourth — The number of sheep of all ages, and the value thereof. 

Fi/th — The number of hogs of all ages, and the value thereof. 

Sixth — Every steam engine, including boilers, and the value 
thereof. 



294 EEYENUE. [DIV. YH. 

Seventh — Every fire or burglar-proof safe, and the value thereof. 

Eighth — Every billiard, pigeon-hole, bagatelle or other similar 
tables, and the value thereof. 

Ninth — Every carriage and wagon, of whatsoever kind, and the 
value thereof. 

Tenth — Every watch and clock, and the value thereof. 

Eleventh — Every sewing or knitting machine,, and the value 
thereof. 

Twelfth — Every piano forte, and the value thereof. 

Thirteenth — Every melodeon and organ, and the value thereof. 

Fourteenth — Every franchise, the description and the value thereof. 

Fifteenth — Every annuity and royalty, the description and the 
value thereof. 

Sixteenth — Every patent right, the description and the value 
thereof, 

Seventeenth — Every steamboat, sailing vessel, wharf-boat, barge 
or other water craft, and the value thereof. 

Eighteenth- — The value of merchandise on hand. 

Nineteenth — The value of material and manufactured articles on 
hand. 

Twentieth — The value of manufacturers' tools, implements and 
machinery (other than boilers and engines, which shall be listed 
as such). 

Twenty-first — The value of agricultural tools, implements and 
machinery. 

Twenty-second — The value of gold or silver plate and plated 
ware. 

Tiventy- Third — The value of diamonds and jewelry. 

Twenty -Fourth — The amount of tnonej's of bank, banker, broker 
or stock-jobber. 

Twenty-fifth — The amount of credits of bank, banker, broker or 
stock-jobber. 

Twenty-sixth — The amount of moneys other than of bank, bank- 
er, broker or stock-jobber. 

Twenty-seventh — The amount of credits other than of bank, bank- 
er, broker or stock-jobber. 

Twenty-eighth — The amount and value of bonds or stocks. 

Tiventy -ninth— The amount and value of shares of capital stock 
of companies and associations not incorporated by the laws of this 
state. 

Thirtieth — The value of property such person is required to list 
as a pawn-broker. 

Thirty-first — The value of property of companies and corpora- 
tions other than properly hereinbefore enumerated. 

Thirty-second — The value of bridge property. 



DIV. VII.] RULES FOR LISTING CREDITS. 295 

Thirty-third — The value of property of saloons and eating houses. 

Thirty-fourth — The value of household or office furniture and 
property. 

Thirty-fifth — The value of investments in real estate and im- 
provements thereon required to be listed under this act. 

Thirty-sixth — The value of all other property required to be listed. 

26. When assessor may examine under oath and list property.] 
§ 26. That whenever the assessor shall be of opinion that the per- 
son listing property for himself or for any other person, company 
or corporation, has not made a full, fair and complete schedule of 
such property, he may examine such person under oath in regard 
to the amount of the property he is required to schedule, and for that 
purpose he is authorized to administer oaths ; and if such person 
shall refuse to answer under oath and a full discovery make, the 
assessor may list the property of such person or his principal, 
according to his best judgment and information. If the person so 
examined shall swear falsely, he shall be guilty of perjury, and 
punished accordingly. [See § 83. 

RULES FOR LISTING CREDITS. 
Section. 

27. What debts may be deducted from credits. 

28. Debts not deducted. 

29. Deduction verified by affidavit — Perjury — Fines — Statements, etc. 

27. What debts deducted from credits.] §27. In making up 
the amount of credits which any person is required to list for 
himself, or for any other person, company or corporation, he shall 
be entitled to deduct from the gross amount of credits the amount 
of all bona fide debts owing by such person, company or corpora- 
tion, to any other person, company or corporation, for a consider- 
ation received; but no acknowledgement of indebtedness not 
founded on actual consideration, believed when received to have 
been adequate, and no such acknowledgment made for the purpose 
of being so deducted, shall be considered a debt within the mean- 
ing of this section ; and so much only of any liability, as surety for 
others, shall be deducted as the person making out the statement 
believes he is legally and equitably bound, and will be compelled 
to pay on account of the inability or insolvency of the principal 
debtor ; and if there are other sureties who are liable to contribute, 
then only so much as the surety in whose behalf the statement is 
made will be bound to contribute : Provided, that nothing in this 
section shall be so constructed as to apply to any bank, company or 
corporation exercising banking powers or privileges, or to author- 
ize any deductions allowed by this section from the value of any 
other item of taxation than credits. 



296 REVENUE. [DIV. VII. 

28. What debts not deducted.] § 28. No person, company or 
corporation shall be entitled to any deduction from the amount of 
any bonds, stocks, or money loaned, or on account of any bond, note 
or obligation of any kind, given to any insurance company on 
account of premiums or policies, nor on account of any unpaid sub- 
scription to any religious, literary, scientific or charitable institution 
or society, nor on account of any subscription to or intallments 
payable on the capital stock of any company, whether incorporated 
or unincorporated. 

29. Deductions verified by oath—Perjury— Fines— Statements 
preserved.] § 29. In all cases where deductions are claimed from 
credits, the assessor shall require that such deductions be verified 
by the oath of the person, officer or agent claiming the same ; and 
any such person, officer or agent, knowingly or willfully making a 
fraudulent statement of such deductions claimed, so verified by 
affidavit, shall be liable to a fine of not less than $100, nor more 
than '$1,000, in addition to all damages sustained by the state, 
county or other local corporation, to be recovered in any proper 
form of action in any court of competent jurisdiction, in the name 
of the People of the State of Illinois. Such fines, when recovered, 
shall be paid into the county treasury, and the damages, when 
collected, shall be paid to whom they belong. The assessor shall 
preserve the statement of deductions thus claimed, so verified by 
affidavit, and when he returns the assessment books shall file the 
same with the county clerk, to be kept on file in his office for two 
years, and at the expiration of such time said statement of deduc- 
tions shall be destroyed by said clerk, but, in the meantime, shall 
be subject only to the inspection of the officers charged with the 
execution of this law. 

BULES FOR LISTING AND VALUING THE PROPERTY AND BUSINESS OE BANKS, 
BANKERS, BROKERS AND STOCK-JOBBERS. 
Section. 
30. Rules for listing. 

30. Rules for listing.] § 30. Every bank (other than a na- 
tional bank), banker, broker or stock-jobber, shall, at the time 
fixed by this act for listing personal propert}^, make out and fur- 
nish the assessor a sworn statement, showing: 

First — The amount of money on hand or in transit. 

Second — The amount of funds in the hands of other banks, 
bankers, brokers, or others, subject to draft. 

Third — The amount of checks, or other cash items, the amount 
thereof not being included in either of the preceding items. 

Fourth — The amount of bills receivable, discounted or purchased, 
and other credits due or to become due, including accounts receiva- 
ble, and interest accrued but not due, and interest due and unpaid. 



DIV. VII. ] PAWN BROKER — LISTING CAPITAL STOCK. 297 

Fifth — The amount of bonds and stocks of every kind, and 
shares of capital stock of joint stock of other companies or cor- 
porations, held as an investment, or any way representing assets. 

Sixth — All other property appertaining to said business, other 
than real estate, (which real estate shall be listed and assessed as 
other real estate is listed and assessed under this act.) 

Seventh — The amount of all deposits made with them by other 
parties. 

, Eighth — The amount of all accounts payable, other than current 
deposit accounts. 

Ninth — The amount of bonds or other securities exempt by law 
from taxation, specifying the amount and kind of each, the same 
being included in the preceding fifth item. 

The aggregate amount of the first, second and third items in 
•said statement, shall be listed as moneys. The amount of the sixth 
item shall be listed the same as other similar personal property is 
listed under this act. The aggregate amount of the seventh and 
eighth items shall be deducted from the aggregate amount of the 
fourth item of said statement, and the amount of the remainder, if 
.any shall be listed as credits. The aggregate amount of the ninth 
item shall be deducted from the aggregate amount of the fifth item of 
such statement, and the remainder shall be listed as bonds or stocks. 

PAWN-BROKER. 
Section. 

31. Who is a pawn-broker. 

31. Who is a pawn-broker.] § 31. Every person or company 
-engaged in the business of receiving property in pledge or as se- 
curity for money or other thing advanced to the pawner or pledger, 
shall be held to be a pawnbroker, and shall, at the time required 
by this act, return, under oath, the value of all property pledged 
and held by him, as a pawn-broker, on hand on the first day of 
May, annually, and taxes shall be charged upon the fair cash 
value of such property, to such pawn-broker, the same as other 
property. 

LISTING CAPITAL STOCK OF CORPORATIONS AND FRANCHISES OF PER- 
SONS.^) 
Section. 

32. Sworn statement — Form. 

33. Schedules returned, forwarded to auditor, etc. 

34. Franchise to be listed and valued. 

32. Sworn statement— Form.] § 32. Banking, bridge, express, 
ferry, gravel road, gas, insurance, mining, plank road, savings 

(1) Corporations are not citizens within the meaning of the clause of the Con- 
stitution of the U.S., Art. -4, § 2, par. 1, which provides "that the citizens of each state shall be 



298 EEVENUE. [DIY. TIL. 

bank, stage, steamboat, street railroad, transportation, turnpike,, 
and all other companies and associations incorporated under the 
laws of this state (other than banks organized under the general 
bankling laws of this state and the corporations required to be 
assessed by the local assessors as hereinbefore provided) shall in 
addition to the other property required by this act to be listed, 
make out and deliver to the assessor a sworn statement of the- 
amount of its capital stock, setting forth particularly. 

Fcrst — The name and location of the company or association. 

Second — The amount of capital stock authorized, and the num- 
ber of shares into which such capital stock is divided. 

Third — The amount of capital stock paid up. 

Fourth — The market value, or if no market value, then the 
actual value of the shares of stock. 

Fifth — The total amount of all indebtedness, except the in- 
debtedness for current expenses, excluding from such expenses 
the amount paid for the purchase or improvement of property. 

Sixth — The assessed valuation of all its tangible property. Such 
schedule shall be made in conformity to such instruction and 
forms as may be prescribed by the Auditor of Public Accounts. 
In all cases of failure or refusal of any person, officer, company 
or association to make such return or statement, it shall be the 



entitled to all the privileges and immunities of citizens of the several states." It is no violation 
of the privilege and immunities of citizens of other states to require a corporation, of which 
they are stockholders to submit to such taxation as the State shall see fit to impose as a condi- 
tion of doing business therein. Cooley on Taxation, p. 65, and cases cited. 

The words "capital stock," as used in the act of 1872, do not mean "shares of 
stock," either separately or in the aggregate, but are intended to designate the property of the 
corporation subject to taxation. Porter et al. v. E. E. I. & St. L. E. E. Co., 76 111. R., 561. 

Section 1, article 9, of the constitution, only requires that corporations shall be 

taxed in such manner as the general assembly shall from time to time direct by general law, 
and the only uniformity required is as to the class upon which such general law shall operate. 
Porter et al. v. E. E. & St. L. E. E. Co., 76 111. R., 561. 

The legislature may rightfully provide for taxing the capital stock of corpor- 
ations, instead of the shares in the hands of the holders, and require corporations to pay such 
tax, leaving them to deduct the same from the dividends. Ottawa Glass Co. v. Mc Caleb, etc., 81 111. 
R., 556. 

The legislature has power to impose taxation on foreign corporations to what- 
ever extent it may, in its discretion, choose, as the condition upon which they shall be allowed 
to exercise their franchise and privileges in this State. Western Union Telegraph Company v. LeEb 
et al., 76 111. R., 172. 

It is discretionary with the legislature to determine whether corporations shall 
be taxed in such manner as the general assembly shall, from time to time, direct by general law, 
and the only uniformity required is as to the class upon which such general law shall operate. 
Its design was to enable the legislature to make the burthen of taxation proportionate, by ap- 
plving a different rule to corporations and the vocation named from that applied to individu- 
als. Porter et al. v. E. E. & St. L. E. E. Co., 76 111. R., 561. 

A corporation is not taxahle on the value of the debts it owes, and to asses a 
corporation on the amount of its debts by the state board of equalization would be a clear vio- 
lation of law. Porter et al. v. E. E. I. & St L. E. E. Co., 76 111. R., 561. 

The assessment of the capital stock of a corporation for taxation, by first ascer- 
taining the market or fair cash value of the shares of the capital stock, and the market or fair 
cash value of its debts, exclusive of those for current expenses, and adding this together, and 
taking from the sum the equalized valuation of all tangible property, was held proper, as show- 
ing the balance of the capital stock over and above the assessed value of the tangible property. 
Pacific Hotel Co. v. Lieb et al., 83 111 R., 602. 



DIV. VII.] STATE AND NATIONAL BANKS. 29& 

duty of the assessor to make such, return or statement from the 
best information which he can obtain. (1) [As amended. 1879. 

33.— Schedule returned— Forwarded to auditor— State Board of 
equalization to assess capital stock.] § 33. Such statements shall 
be scheduled by the assessor ; and such schedule, with the state- 
ments so scheduled, shall be returned by the assessor to the county 
clerk. Said clerk shall, at the time he makes his report of assess- 
ment, forward to the auditor all such schedules and statements so 
returned to him. The auditor shall, annually, on the meeting of 
the state board of equalization, lay before said board the schedules 
and statements herein required to be returned to him ; and said 
board shall value and assess the capital stock of such companies 
or associations, in the manner provided in this act. 

34. ^Franchise to be listed and valued.] § 34. Every person 
owning or using a franchise granted by any law of this state,, 
shall, in addition to his other property, list the same as personal 
property, giving the total value thereof. (2) 

STATE AND NATIONAL BANKS. (3) 

SECTION. 

35. How assessed and taxed. 

36. List of stockholders to be kept, etc. 

37. Shares listed in owner's name — Tax extended. 

38. How tax on shares collected — Lien. 

39. Dividends to be held for taxes— Shares sold. 

35. How assessed and taxed.] § 35. The stockholders in every- 
bank located within this state, whether such bank has been or- 
ganized under the banking laws of this state or of the United 

(1) The law requiring the assessor to make and return a schedule, where the 
corporation fails to list its property, is not intended for the benefit of the corporation ; and the- 
neglect of the local assessor to do his duty, furnishes no excuse for the Jiegli^ence of the officers 
of a corporation. They should make the proper returns to the assessor whether solicited, or not, 
and thus they can be heard through such officer. If this is not done, they may still be heard, 
on proper application, before the state board. Pacific Hotel Co. v. Lieb , 83 111. R., 602. 

(2) A franchise of a corporation is property, and has a value capable of being esti- 
mated, and is therefore not only liable to be taxed, but under the constitution is required to be 
in some appropriate mode. Ottawa Glass Co. v. McCaleb, etc., 81 111. R., 556; Porter et al. v. R. R. I. 
& St. L. R. R. Co., 76 111. R.. 561. 

(3) A state tax against a shareholder of a national hank, for any year, under the 
law then in force, and voluntarily paid, cannot be recovered back, because the assessment under 
the law, was illegal ; the property being subject in some mode to taxation. People ex rel. v. Miner, 
46 111. R., 374; Van Allen v. Tlie Assessors, 3 Wallace R., 573; Bradley v. State of Illinois, 4 Wallace 
R.. 457. 

Whether the shares of national bank stock are listed for taxation by the individual owners, or 
the capital stock is listed by the bank, a similar valuation and a like burden are imposed, and 
in whichever mode the assessment is made, there is no wrong perpetrated and no injustice done. 
Board of Supervisors of Stephenson Co. v. Manny, 54 111. R., 160. 

The assessors will ascertain the ownership, number and value of all such shares in 
the stock of banks located in their respective counties and towns, and return the same as re- 
quired by this a'rt, being governed by all the rules of valuation and regulations in other respects 
provided by Jaw as to the assessment of other property not made inapplicable by the terms of 
this act, and the clerks will extend taxes thereon, and collectors will make collections in ac- 
cordance with the general revenue laws and the provisions of this act. Circular Auditor Miner,. 
July 1, 1867. 



300 EEVENUE. [DIV. VH. 

States, shall be assessed and taxed on the value of their shares of 
stock therein, in the county, town, district, village or city where 
such bank or banking association is located, and not elsewhere, 
whether such stockholders reside in such place or not. Such 
shares shall be listed and assessed with regard to the ownership 
and value thereof, as they existed on the first day of May, annu- 
ally, subject, however, to the restriction that taxation of such 
shares shall not be at a greater rate than is assessed upon any 
other moneyed capital in the hands of individual citizens of this 
state, in the county, town, district, village or city where such 
bank is located. The shares ot capital stock of national banks 
not located in this state, held in this state, shall not be required 
to be listed under the provisions of this act. 

36. List of stockholders to be kept, etc.] § 36. In each such 
bank there shall be kept at all times a full and correct list of the 
names and residences of its stockholders, and of the number of 
shares held by each ; which list shall be subject to the inspection 
of the officers authorized to assess property for taxation ; and it 
shall be the duty of the assessor to ascertain and report to the 
county clerk a correct list of the names and residences of all 
stockholders in any such bank, with the number and assessed 
value of all such shares held*by each stockholder. 

37. Shares listed in names of owners — Tax extended.] § 37. 
The county clerk, to whom such returns are made, shall enter the 
valuation of such shares in the tax lists, in the names of the re- 
spective owners of the same, and shall compute and extend taxes 
thereon the same as against the valuation of other property in 
the same locality. 

38. How tax on shares collected — Lien.] § 38. The collec- 
tor of taxes, and the officer or officers authorized to receive taxes 
from the collector, may, all or either of them, have an action to 
collect the tax assessed on any share or shares of bank stock 
from the avails of the sale of such share or shares ; and the tax 
against such share or shares shall be and remain a lien thereon 
till the payment of said tax. 

39. Dividends to be held for taxes — Shares sold.] § 39. For 
the purpose of collecting such taxes, it shall be the duty of every 
such bank, or the managing officer or officers thereof, to retain so 
much of any dividend or dividends belonging to such stockhold- 
ers as shall be necessary to pay any taxes levied upon their shares 
of stock, respectively, until it shall" be made to appear to such 
bank or its officers that such taxes have been paid; and any 
officer of any such bank who shall pay over or authorize the 
paying over of any such dividend or dividends, or any portion 
thereof, contrary to the provisions of this section, shall thereby 



DIV. VE.] LISTING PROPERTY OP RAILROADS. 301 



become liable for such tax ; and if the said tax shall not be paid, 
the collector of taxes where said bank is located shall sell said 
share or shares to pay the same, like other personal property. 
And, in case of sale, the provision of law in regard to the transfer 
of stock when sold on execution, shall apply to such sale. 

MANNER OF LISTING AND VALUING THE PROPERTY OF RAILROADS. 

Section. 

40. Schedules— Value on first of May. 

41. Time of filing— Form of schedule. 
, 42. "Railroad track"— Discriptiou of. 

43. How " railroad track" listed aDd taxed. 

44. ' ' Rolling stock » '—Schedule. 

45. How "rolling stock" listed and taxed. 

46. Personalty and real estate other than " rolling stock," etc. 

47. How such other personal and real property to he assessed. 

48. Railroad returns to auditor. 

49. Neglect to return. 

50. Schedules— Board to assess railroad property. 

51. Railroad tax books— Extending and collecting tax. 

52. Description of platted lands. 

40. Schedules— 1st May. J § 40. Every person, company or cor- 
poration owning, operating or constructing a railroad in this 
state, shall return sworn lists or schedules of the taxable prop- 
erty of such railroad, as hereinafter provided. Such property 
shall be listed and assessed with reference to the amount, kind 
and value on the first day of May of the year in which it is 
listed.(l) 

41. Time of filing schedule— Form of same.] § 41. They shall, 
in the month of May of the year 1873, and at the same time in 
each year thereafter when required, make out and file with the 
county clerks of the respective counties in which the railroad 
may be located, a statement or schedule showing the property 
held for right of way, and the length of the main and all side 
and second tracks and turnouts in such county, and in each city, 
town and village in the county, through or into which the road 
may run, and describing each tract of land, other than a city, 
town or village lot, through which the road may run, in accord- 
ance with the United States surveys, giving the width and length 
of strip of land held in each tract, and the number of acres 
thereof. They shall also state the value of improvements and 

stations located on the right of way. New companies shall make 

■ 

(1) The road over which, a company occasionally runs its trains under a mere 
easement or a license is not any part of its main track, so as to subject it to assessment for taxa- 
tion in that county, and where a county illegally assesses and collects a tax upon rolling stock of 
a railroad company, it not being taxable in such county by reason of the company only using 
another road therein under a mere easement, the company may bring its action against the 
county and recover the money back. Cook County v. C. B. & Q. R. R. Co., 35 111. B,., 640. 



"302 REVENUE. [DIV. VII. 

such statement in May next after the location of their roads. 
When such statement shall have been once made, it shall not be 
necessary to report the description as hereinbefore required, un- 
less directed so to do by the county board; but the company 
shall, during the month of May, annually, report the value of 
such property, by the description set forth in the next section of 
this act, and note all additions and changes in such right of way 
as shall have occurred. (1) 

42. " Railroad track "—Description of.] § 42. Such right of 
way, including the superstructures of main, side or second track 
and turnouts, and the station and improvements of the railroad 
company on such right of way, shall be held to be real estate for 
ihe purposes of taxation, and denominated "railroad track," and 
shall be so listed and valued; and shall be described in the 
assessment thereof as a strip of land extending on each side of 
such railroad track, and embracing the same, 'together with all 
the stations and improvements thereon, Commencing at a point 
where such railroad track crosses the boundary line in entering 
the county, city, town or village, and extending to the point 
ivliere such track crosses the boundary line leaving such county, 
city, town or village, or to the point of termination in the same, 
as the case may be, containing acres, more or less, (in- 
serting name of county, township, city, town or village boundary 
line of same, and number of acres, and length in feet,) and when 
advertised or sold for taxes, no other description shall be neces- 
sary. 

43. How "railroad track" listed and assessed.] §43. The 
value of the "railroad track" shall be listed and taxed in the 
several counties, towns, villages, districts and cities, in the pro- 
portion that the length of the main track in such county, town, 
village, district or city bears to the whole length of the road in 
this state, except the value of the side or second track, and all 
turnouts, and all station houses, depots, machine shops, or other 
buildings belonging to the road, which 'shall be taxed in the 
county, town, village, district or city in which the same are 
located. 

44. "Rolling stock "—Schedule.] § 44/ The moveable prop- 
erty belonging to a railroad company shall be held to be per- 
sonal property, and denominated, for the purpose of taxation, 
^'rolling stock." Every person, company or corporation owning, 

(1) Railroad trade is required to be assessed by llie State Board of Equalization, 
but all other real estate of railroad companies, including the stations and other buildings and 
structures thereon, must be assessed by the local assessors. The term '■ right of way " can only 
be understood as embracing the land used as a way for the road, and not such additional 
•ground as may be used for the convenience of the railroad, but not a part of its way. C B & 
Q. R. E. Co. v. Paddock, et al., lb 111. R.,616, 



DIV. YII.] LISTING PBOPEETY OF KA1LROADS. 303 

-constructing or operating a railroad in this state, shall, in the 
month of May, annually, return a list or schedule, which shall 
contain a correct detailed inventory of all the rolling stock be- 
longing to such company, and which shall distinctly set forth the 
number of locomotives of all classes, passenger cars of all classes, 
sleeping and dining cars, express cars, baggage cars, house cars, 
cattle cars, coal cars, platform cars, wrecking cars, pay cars, 
hand cars and all other kinds of cars. 

45. How "rolling stock" listed and taxed.] § 45. The rolling 
stock shall be listed and taxed in the several counties, towns, vil- 
lages, districts and cities, in the proportion that the length of the 
main track used or operated in such county, town, village, district 
or city bears to the whole length of the road used or operated by 
such person, company or corporation, whether owned or leased by 
(hini or them in whole or in part. Said list or schedule shall set 
forth the number of miles of main track on which said rolling stock 
is used in the state of Illinois, and the number of miles of main 
track on which said rolling stock is used elsewhere. 

46. Personalty and real estate other than " rolling stock " and 
" railroad track" where listed.] §46. The tools and materials 
for repairs, and all other personal property of any railroad except 
"rolling stock," shall be listed and assessed in the county, town, 
village, district or city wherever the same may be on the first day 
of May. All real estate, including the stations and other build- 
ings and structures thereon, other than that denominated " rail- 
road track," belonging to any railroad, shall be listed as lands or 
lots, as the case may be, in the county, town, village, district or 
city where the same are located. 

47. How such other personal and real property to be assessed.] 

§ 47.^ The county clerk shall return to the assessor of the town or 
district, as the case may require, a copy of the schedule or list of 
the real estate (other than " railroad track,") and of the personal 
property (except " rolling stock,") pertaining to the railroad; and 
such real and personal property shall be assessed by the assessor. 
Such property shall be treated in all respects, in regard to assess- 
ment and equalization, the same as other similar property belong- 
ing to individuals, except that it shall be treated as property 
belonging to railroads, under the terms "lands," "lots," and "per- 
sonal property." 

48. Railroad returns to auditor.] § 48. At the same time that 
the lists or schedules are hereinbefore required to be returned to 
the county clerks, the person, company or corporation running, 
operating or constructing any railroad in this state, shall return to 
the auditor of public accounts sworn statements or schedules, as 
follows : 



304 eeyenue. [div. vn~ 

First^Ot the property denominated "railroad track," giving 
the length of the main and side or second tracks and turn outs, 
and showing the proportions in each county, and the total in the 
state. 

Second — The " rolling stock," giving the length of the main track 
in each county, the total in this state, and the entire length of the 
road. 

Third — Showing the number of ties in track per mile, the weignt 
of iron or steel per yard, used in main or side tracks ; what joints 
or chairs are used in track, the ballasting of road, whether graveled, 
or dirt, the number and quality of buildings or other structures on 
"railroad track," the length of time iron in track has been used r 
and the length of time the road has been built. 

Fourth — A statement or schedule showing : 

1. The amount of capital stock authorized, and the number of 
shares into which such capital stock is divided. 

2. The amount of capital stock paid up. 

3. The market value, or if no market value, then the actual 
value of the shares of stock. 

4. The total amount of all indebtedness, except for current 
expenses for operating the road. 

5. The total listed valuation of all its tangible property in this, 
state. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of public accounts. 

49. Neglect to return.] § 49. If any person, company or cor- 
poration, owning, operating or constructing any railroad, shall 
neglect to return to the county clerks the statements or schedules 
required to be returned to them, the property so to be returned 
and assessed by the assessor shall be listed and assessed as other 
property. In case of failure to make returns to the auditor, as 
hereinbefore provided, the auditor, with the assistance of the 
county clerks and assessors, when he shall require such assistance,, 
shall ascertain the necessary facts and lay the same before the state 
board of equalization. In case of failure to make such statements, 
either to the county clerk or auditor, such corporation, company 
or person shall forfeit, as a penalty, not less than 1,000 nor more 
than $10,000 for each offense, to be recovered in any proper form 
of action, in the name of the People of the State of Illinois, and 
paid into the state treasury. 

50. Schedules— Board to assess railroad property.] § 50. The 

auditor shall, annually, on the meeting of the state board of 
equalization, lay before said board the statements and schedules 
herein required to be returned to him ; and said board shall assess 
such property in the manner hereinafter provided. 



DIV. VII.] TELEGEAPH COMPANIES. 305 



51. Railroad tax book— Extending and collecting tax.] § 51. 

The county clerk shall procure, at the expense of the county, a 
record book, properly ruled and headed, in which to enter the 
railroad property of all kinds, as listed for taxation, and shall 
enter the valuations as assessed, corrected and equalized, in the 
manner provided by this act ; and against such assessed, corrected 
or equalized valuation, as the case may require, the county clerk 
shall extend all the taxes thereon for which said property is liable. 
And at the proper time fixed by this act for delivering tax books 
to the county collector, the clerk shall attach a warrant, under his 
seal of office, and deliver said book to the county collector, upon 
which the said county collector is hereby required to collect the 
taxes therein charged against railroad property, and pay over and 
account for the same in the manner provided in other cases. Said 
book shall be returned by the collector and be filed in the office of 
the county clerk for future use. 

52. Description of platted land.] § 52. When any railroad 
company shall make or record a plat of any contiguous lots or 
parcels of land belonging to it, the same may be described as des- 
ignated on such plat. 

TELEGRAPH COMPANIES — RETURN. 

Section. 

53. Schedule. 

54. Board of equalization to assess — How tax collected. 

55. Office furniture, etc., how listed and assessed. 

53. Schedule.] § 53. Any person, company or corporation, 
using or operating a telegraph line in this state, shall, annually, in 
the month of May, return to the auditor of public accounts a 
schedule or statement, as follows : t 

First — The amount of capital stock authorized, and the number 
of shares into which such capital stock is divided. 

Second — The amount of capital stock paid up. 

Third — The market value, or if no market value, then the actual 
value of the shares of stock. 

Fourth — The total amount of all indebtedness, except current 
expenses, for operating the line. 

Fifth — The length of line operated in each county, and the total 
in the state. 

Sixth — The total assessed valuation of all its tangible property 
in this state. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of public accounts, 
and with reference to amounts and values on the first day of May 
of the year for which the return is made. 
20 



# 

306 REVENUE. [DIV. VII. 

54. Board of equalization to assess— How tax collected, j § 54. 

The auditor shall annually, od the meeting of the state board of 
equalization, lay before said board the statement or schedule 
herein required to be returned to him ; and said board shall assess 
the capital stock of such telegraph company, in the manner here- 
inafter provided. The tax charged on the capital stock of tele- 
graph companies shall be placed in the hands of county collectors, 
in a book provided for that purpose, the same as is required for 
railroad property, and may be included in same book with railroad 
property. 

55. Office furniture, etc., how listed and assessed.] § 55. The 
office furniture and other personal property of telegraph companies 
shall be listed and assessed in the county, town, district, village or 
city where the same is used or kept. 

PENALTY. 

Section. 

56. False schedule, etc. 

57. Perjury. 

56. False schedule, etc.] § 56. If any person or corporation 
shall give a false or fraudulent list, schedule or statement, re- 
quired by this act, or shall fail or refuse to deliver to the assessor, 
when called on for that purpose, a list of the taxable personal 
property which he is required to list under this act, he or it shall 
be liable to a penalty of not less than $10, nor more than $2,000, 
to be recovered in any proper form of action, in the name of the 
People of the State of Illinois, on the complaint of any person. 
Such fine, when collected, to be paid into the county treasury. 

57. Perjury.] § 57. Whoever shall willfully make a false list, 
schedule or statement, under oath, shall, in addition to the pen- 
alty provided in the preceding section, be liable as in the case of 
perjury. 

REAL PROPERTY — AS OF WHAT TIME LISTED — WHO LIABLE FOR TAX. 

Section. 

58. Real property — Listed May 1st. 

59. Owner on 1st May liable. 

60. Leasehold interest in exempted lands. 

61. When certain lands become taxable. 

58. Real property— Listed May 1st.] § 58. All real property 
in this state, subject to taxation under this act, including real es- 
tate becoming taxable for the first time, shall be listed to the 
owners thereof, by such owners, their agents, county clerks or as- 
sessors, or the county board, and assessed for the year one thou- 
sand eight hundred and eighty, and quadrennially thereafter, with 



DIV. vn.] SUBDIVIDING. 307 

reference to the amount owned on the first day of May, in the 
year in which the same is assessed, including all property pur- 
chased on that day, which assessment, as modified or equalized 
as provided by law, shall be the assessment upon which taxes 
shall be levied and extended during the quadrennial period for 
which the same is made : Provided, that no sssessment of real 
property shall be considered as illegal by reason of the same not 
being listed or assessed in the name of the owner or owners thereof. 
[As amended, 1879.* 

59. Owner on 1st May liable.] § 59. The owner of property 
on the first day of May in any year, shall be liable for the taxes 
of that year. The purchaser of property on the first day of May 
shall be considered as the owner on that day. 

60. Leasehold interest in exempted lands.] § 60. "When real 
estate, which is exempt from taxation, is leased to another whose 
property is not exempt, and the leasing of which does not make 
the real estate taxable, the leasehold estate and the appurtenances 
shall be listed as the property of the lessee thereof, or his assignee, 
as real estate. 

61. When certain lands become taxable.] § 61. Government 
lands entered or located on or prior to the first day of May, shall 
be taxable for that year, and annually thereafter. School lands 
and lots sold shall be taxable in like manner as government lands. 
Lands and lots sold by the trustees of the Illinois and Michigan 
Canal shall be taxable from and after the time the full payment 
therefor is made. Illinois Central Railroad lands and lots shall 
be taxable from and after the time the last payment becomes due. 
Swamp lands and lots shall become taxable whenever the county 
sells, conveys or agrees to convey its title : Provided, that canal, 
Illinois Central Railroad and swamp lands and lots shall be, in 
other respects, governed, as to the time of becoming taxable, the 
same as government lands. 

SUBDIVIDING. 

Section. 

62. Owner to plat— Record— Description. 

63. Owner neglecting— County clerk to cause plat, etc. 

62. Owner to plat— Record— Description.] § 62. In all cases 
where any tract or lot of land is divided in parcels, so that it can- 
not be described without describing it by metes and bounds it 
shall be the duty of the owner to cause such land to be surveyed 
and platted into lots. Such plat shall be certified and recorded. 
The description of real estate, in accordance with the number 
and description set forth in the plat, aforesaid, shall be deemed 

* Amended, 1881. See Appendix, p. 482. 



308 EEVENUE. [DIV. YII. 

a good and valid description of the lot or parcel of land so de- 
scribed.^) 

63. Owner neglecting— County clerk to cause plat, etc.] § 63. 

If the owner of any such tract or lot shall refuse or neglect to 
cause such survey to be made within thirty (30) days after having 
been notified by the county clerk, by publication of a notice in a 
newspaper in the county, having general circulation, at least 
three times, said clerk shall cause such survey to be made and 
recorded; and the expenses of the publication of such notice and 
of making such survey shall be added to the tax levied on such 
real property, and when collected, shall be paid on demand to the 
persons to whom it is due. [As amended, 1879. 

HOW LISTED AS BETWEEN COUNTIES. 
Section. 

64. In two counties. 

64. In two counties.] § 64. Any tract of land not exceeding 
one-sixteenth of a section, shall be listed in the county where the 
greater part thereof is situated. When any such tract of land 
shall be situated equally in two counties, the auditor shall deter- 
mine in which county it shall be listed. If there be several tracts 

(1) It is tlie duty of assessors to assess each tract of land separately, and a judg- 
ment and order of sale against a tract of land which has not been assessed, but which has been 
assessed in connection with other lands aggregately is erroneous. Howe et at. v. The People ex 
rel., 86 111. R.. 288. 

The description of property for purposes of taxation should be such that a qual- 
fied surveyor can locate it thereby. Sale under a description running " Part of section 12, etc.," 
without definitely locating such part is void for uncertainty. Opinion Auditor Needles, March 
12, 1878. 

A misdescription or defective description of a tract of land by an assessor will 
not affect the taxes: imposed on other tracts, and the law will not allow a party resisting judg- 
ment against his property for taxes, to raise an objection which does not apply to his property, 
but does to that of others who do not object. Buck v. The People, 78 111. R., 560. 

Where the name of the patentee or present owner is not returned by the assessor it will be pre- 
sumed he was unknown to him. Jackson v. Cummings, 15 111. R.; 452, 2 Gilm. R., 450. 

The term " tract " or " parcel " of land in the law does not necessarily refer to the smaller sub- 
division of the government survey, as 40's. A farm, (or tract of land) of contiguous territory, 
owned and occupied by the same person, would seem to be a separate tract of real property, and 
such is the construction which the law places upon it. Atkins v. Hinman, 2 Gilm. R., 443; 
Spellman v. Curtenius, 12 111. R., 410 ; Morley v. Naylor, 6 Minn. R., 192. The word " lot " as used in 
the law, must be taken to mean town or city lots, as laid out, platted, numbered and recorded. 
6 Minn. R. 203. And a sale of a number of such lots in a body, or the assessment of a number as 
one tract, although lying contiguous would be void. The reason of the distinction between the 
two cases is obvious. In the first, any number of government subdivisions, lying together and 
owned by the same person, constitute one tract, within the meaning of the law. This the law 
allows; but in case of town lots, each lot must be listed separately. Washington v. Pratt. 8 
Wheat. R., 681; Unmin v. Inman, 26 Maine E., 228; Wiley v. Lorilles Lessees, 9 Ohio R., 43. The 
word "tract" may also refer to such lands within the limits of any town as are not divided into 
lots. Opinion Attorney General (Minn.), vol. 1, p. 309. 

The assessment of a tax upon a " part of a lot " or " one acre of a lot," without quantity or lo- 
cation in the one case or without location in the other is too vague and indefinite to authorize a 
sale of any part or in any place. Massie v. Long, 2 Ohio R., 287. 

A certain and definite description of each parcel of land or lot should be given. 
It is necessary to the validity of a tax sale that the land should appear upon the duplicate by a 
pertinent description, and in the name of the rightful owner, if known. If not known, how- 
ever, the land is still taxed, being entered to an unknown owner. The tax attaches upon the 
land, rather than upon the rerson; not upon the number of entry or survey, but upon the land 
included in such entry or sun ey. Douglas v. Dangerfield, 14 Ohio R., 522 ; Massie v. Long, 2 Ohio 
R., 287. 



DIY. VII.] LISTED BETWEEN TOWNS — ASSESSMENT BOOKS. 309 

similarly situated, the auditor shall apportion them equally be- 
tween the counties as nearly as practicable. County clerks may 
have the actual contents of such tracts lying in their respective 
counties, surveyed, platted and recorded, in the manner provided 
for in other cases. 

HOW LISTED AS BETWEEN TOWNS. 
Section. 

65. In different towns. 

65. In different towns.] § 65. The foregoing rule shall apply 
to lands lying in different towns : Provided, the county clerk shall 
act in said cases instead of the auditor. 

MAKING AND DELIVERY OF ASSESSMENT BOOKS AND BLANKS. 

Section. 

66. How books to be made. 

67. Books to be by townships — When separate books for cities, etc. 

68. Lists to be compared by county clerk. 

69. Books, etc., to be ready by first of May. 

70. Assessors to call for books, etc., by first of May. 

71. Other lands. 

66. How books to be made.] § 66. The county clerk shall make 
up for the several towns or districts in his county, in books to be 
provided for that purpose, the lists of lands and lots to be assessed 
for taxes. When a whole section, half section, quarter section or 
half quarter section belongs to one owner, it shall, at the request 
of the owner, or his agent, be listed as one tract ; and when all 
lots in the same block belorfg to one owner, they shall, at the re- 
quest of the owner, or his agent, be listed as a block. When sev- 
eral adjoining lots in the same block belong to the same owner, 
they shall, at the request of the owner, or his agent, be included 
in on e description : Provided, that when any tract or parcel of 
real estate is situated in more than one town, or in more than one 
school, road or other district, the portion thereof in each town 
or district shall be listed separately. Said clerk shall enter in the 
proper column, opposite the respective tracts or lots, the names of 
the owners thereof so far as he shall be able to ascertain the 
same. Said book shall contain columns in which may be shown 
the name of the owner or owners of the tracts or lots of land to 
be returned by the assessor, the number of acres or lots improved 
and the value thereof ; the number of acres or lots not improved 
.and the value thereof; the value of subsequent improvements 
made, and a column for loss in value of real estate occasioned by 
the destruction of improvements, and a column for total value. 
Separate columns shall also be ruled in said book to show the 
valuation as corrected and equalized by the town board, in coun- 



310 REVENUE. [DIV. VII. 

ties under township organization, by the county board and by the 
state board of equalization. Said books shall also contain proper 
columns for the extension of taxes, the first for state, county, 
town, and such other taxes as are computed by a uniform rate 
upon all the taxable property throughout the township or district, 
in the respective tax books, to be denominated " consolidated tax," 
which rates shall be combined, and such taxes computed and set 
down in one item, opposite each assessment. All other taxes shall 
be computed and set down in separate columns. Said books 
shall contain such columns as may be necessary for the ex- 
tension of other taxes not computed by a uniform rate upon 
all the property in such books, and also a column for total 
tax and a column to show the amount paid to the town or 
district collector, and one to show the amount paid the county 
collector, and such space as may be necessary to show the date of 
payment and for whom paid. Each book shall be paged in consecu- 
tive numbers, beginning with number one in each book, and each 
line on each double page of such book shall be numbered 
consecutively, beginning with number one on each double page 
of each book. In counties not under township organization, 
such books shall be made up by congressional townships, but 
parts of townships, or fractional townships less than full town- 
ships may be added to full townships at the discretion of 
the county board. In counties under township organization 
said books shall be made to correspond with the organized 
townships. Separate books may be made for the collection 
of all taxes within the corporate limits of cities, towns and 
villages, and for the collection of taxes on personal estate. This' 
section shall not be construed to interfere with the tax book pro- 
vided for the use of county collectors for collecting all taxes 
charged against railroad property and telegraph companies, and 
the county clerk shall furnish to the assessors of the several towns 
and districts in his county, when necessary, a book or books in 
which to note and assess the value of improvements made or des- 
troyed in years subsequent to the general assessment of real estate. 
The county clerk shall make a tabular statement in each of said 
books, of the rate per cent, of addition or deduction, as made by 
the county and state boards of equalization, and the rate of 
extension of each kind of tax made upon such books. Said 
books shall be ruled for the extension of four years taxes. (1) [As 
amended, 1879.* 

67. Books to be by townships— When separate books for cities, 
etc.] § 67. The books for the assessment of property in counties 

(1) If the owner of property suffers any wrong by the refusal of the county clerk 
to include his lot for assessment in the books returned to the assessor in blocks instead of lots, 
his remedy is an action against the clerk. Thatcher v. Tlie People ex re/., 79 111. R., 597. 

* Amended, 1881. See Appendix, p. 482. 



DIY. TIL] APPOINTMENT OF ASSESSOKS. 311 

not under township organization, shall be made up by congres- 
sional townships, but parts or fractional townships, less than full 
townships, may be added to full townships, at the discretion of 
the county board. In counties under township organization, said 
books shall be made to correspond with the organized townships. 
Separate books shall be made for the assessment of property and 
the collection of all taxes and special assessments thereon, within 
the corporate limits of cities, towns and villages, if ordered by 
the county board, 

68. Lists compared.] § 68. The county clerk shall cause 
such lists to be carefully compared with the list of taxable real 
property on file in his office. 

69. Books ready by 1st May.] § 69. The county clerk shall 
cause such assessment books, and all blanks necessary to be used 
by the assessor in the assessment of real or personal property, 
to be in readiness for delivery to the assessor on or before the 
first day of May in the year for which such assessment is made. 
[As amended, 1879. * 

70. Assessors to call for books.] § 70. It shall be the duty of 
the county, town or district assessor to call on the county clerk 
on or before the first day of May, in the year 1880 and on the 
first day of May, quadrennially thereafter, for the assessors 
books and blanks for the assessment of real estate, and on the 
first day of May, annually, for the books for the assessment of 
personal property and improvements made or destroyed, and 
the failure of any assessor to do so shall be deemed sufficient 
cause to declare his office vacant and for the appointment of a 
successor. [As amended, 1879.* 

71. Other lands.] § 71. If, after the delivery of such books 
to the assessor in any year, the clerk shall receive an abstract 
showing the entry of any lands or lots not contained in such 
books, it shall be his duty to furnish a list of the same to the 
proper assessor within five days after such abstract is received. 

APPOINTMENT OF ASSESSORS AND DEPUTY ASSESSORS. 

Section. 

72. Assessors in counties not under township organization. 

73. Assessors may appoint deputies. 

72. In counties not under township organization.] § 72. Until 
provision is made by law for the election of the county assessor 
in counties not under township organization, the county board, in 
said counties, shall, annually, appoint some suitable and competent 
person as county assessor, and the person so appointed shall hold 
his office for one year, subject, however, to all the fines, penalties, 

* Amended, 1881. See Appendix, pp, 482, 483. 



312 REVENUE. [DIV. VII. 

and removal from office, provided for in this act. A vacancy from 
any cause, in the office of assesseor, shall be filled by appointment 
by said board. [By act approved May 2, 1873, the county treas- 
urer is made ex-qfflcio collector. See " Election," post, § 21. 

73. Deputies.] § 73. If any assessor, for any cause whatever, 
shall be unable to perform the duties required of him, within the 
time designated by law, he may, by and with the advice and con- 
sent of the chairman of the county board, or board of town audi- 
tors, as the case may require, appoint one or more suitable persons 
to act as deputies to assist him in making the assessment, and may 
designate the district, or portion of the township, city, village or 
town in which such deputy or deputies are authorized to list and 
assess property. Such deputy assessors shall make their returns 
to the assessor. 

OATH AND DUTIES OP ASSESSORS— ASSESSMENT OF REAL AND PER- 
SONAL PROPERTY. 
Section. 

74. Oath. 

75. Failure to take oath — Vacancy. 

76. How real estate assessed. 

77. Other lands added. 

78. How personal property assessed. 

79. When owner, etc., sick or absent— Notice. 

80. Examination under oath — Witnesses. 

81. School district to be designated. 

82. When personalty in several districts. 

83. When assesor to fix value. 

84. Owner niay require statement of valuation. 

85. Assessors to use forms, etc. 

74. Oath.] § 74. Every assessor or deputy assessor, before 
entering upon the duties of his office, shall take and subscribe the 
oath required by the constitution.(l) 

75. Failure to take oath — Vacancy.] § 75. If any assessor shall 
fail to take the oath required by this act, his office shall become 
vacant ; and in such case, or in case the office of assessor is vacant 
for any cause, the county board or town board, as the case may 
be, shall fill the vacancy by the appointment of same suitable per- 
son, who shall qualify and discharge the duties of such assessor 
till the office is otherwise filled, as required by law. 

76. How real estate assessed.] § 76. Assessors shall, between 
the first day of May and the first day of July, in the year 1880, 
and between the first day of May and the first day of July every 



(1) The fact that an assessor was not sworn by the proper officer, will afford 
no ground for refusing judgment for the collection of the delinquent taxes. Sullivan v. State oj 
Illinois, 66 111. R., 75. 



DIY. VII.] APPOINTMENT OF ASSESSORS. 313 

fourth year thereafter, actually view and determine, as nearly as 
practicable, the fair cash value of each tract or lot of land listed 
for taxation, and set down in proper columns in the book furnished 
him the value of each tract or lot improved, the value of each tract 
or lot not improved, and the total value. Said assessor, shall be- 
tween the first day of May and the first day of July, in each year, 
after the regular assessment, of real estate report to the county 
clerk the value of improvements on any tract of land or lot which 
have been made or destroyed since the preceding general assess- 
ment of real estate, and not already reported, describing the prem- 
ises upon which such improvements are or have been located as 
the same are described in the general real estate assessment roll, 
in a book to be provided for that purpose and it shall be the duty 
of the county clerk, upon the receipt of such assessment, to add to 
or deduct from the assessed values of the tracts of lands or lots 
upon which such improvements are or have been located, the 
values of the same as equalized by the town board, and the gen- 
eral assessment of real estate as modified by such additions or de- 
ductions, shall be the assessment of real estate for such year.(l) 
[As amended, 1879.* 

77. Other lands added.] § 77. If the assessor discovers any 
real property, subject to taxation, which has not been returned to 
him by the clerk, he shall list and assess such property. [See 
§276. 

78. How personal property assessed.] § 78. The assessor or 
his deputy shall, also, between the first day of May and July pro- 
ceed to take a list of the taxable personal property in his county, 
town or district, and assess the value thereof in the manner follow- 
ing, to-wit : He shall call at the office, place of doing business, or 
residence of each person required by this act to list property, and 
list his name, and shall require such person to make a correct 



(1) Assessors, in judging of the value of property, act judicially ; and although, 
they may err and assess it too high, this of itself, will give a court of equity no jurisdiction to 
interfere and restrain the collection of the tax. Porter et al. v. R. R. I. 6c St. L. R. R. Co., 76 111. 
R. 561. 

Where an officer is invested with, power to make an assessment of property for 
taxation, and exercises such power, the assessment will be presumed to be valid until it is 
6hown to be void. Munson v. Miller, 66 111. R., 380. 

If property is valued at too great a sum, or more in proportion to other property, in 
the absence of fraud, or want of power, the courts can afford no relief against the over valuation. 
Ottawa Glass Co. v. Mc Caleb etc., 81 111. R., 557. 

The courts have no power to revise the assessment of property made by the as- 
sessor, or set aside or change any value made by him, when his judgment has been honestly 
exercised and the assessment has been made on a right basis. Spencer v. The People, 68 111. R..510. 

Failure to assess a part will not vitiate taxes on propertv assessed. Dunham v. City 
of Chicago, 55 111. R., 357; Peck v. City of Chicago, 56 111. R., 283; Wright v. City of Chicago, 56 111. 
R., 281. 

When an assessor acts with a fraudulent purpose, to the injury of a tax payer, the 
latter may be relieved, as fraud vitiates all acts. Republic Life Ins. Co. v. Pollack et al., 75 I1L 
E.,295. 

* Amended, 1881. See Appendix, p. 483. 



314 REVENUE. [DIV. VII.. 

statement of his taxable property, in accordance with the provi- 
sions of this act ; and the person listing the property shall enter a. 
true and correct statement of such property, in the form prescribed 
by this act, which shall be signed and sworn to, to the extent re- 
quired by this act, "by the person listing the property, and delivered 
to the assessor; and the assessor shall thereupon assess the value 
of such property, and enter the same in his books : Provided,, 
if any property is listed or assessed on or after the first day of July, 
and before the return of the assessors's books, the same shall be 
as legal and binding as if listed and assessed before that time.(l) 

79. When owner, etc., sick or absent.] § 79. If any person 
required by this act to list property shall be sick or absent when 
the assessor calls for a list of his property, the assessor shall 
leave at the office or usual place of residence or business of 
such person a written or printed notice, requiring such person to 
make out and leave at the place named by said assessor, on or 
before some convenient day named therein, the statement or 
schedule required by this act. The date of leaving such notice, 
and the name of the person required to list the property, shall 
be carefully noted by the assessor in a book to be kept for that 
purpose. 

80. Examination nnder oath — Witness.] § 80. The assessor 
may examine, on oath, any person whom he may suppose to have 
knowledge of the amount or value of the personal property 
which the person so refusing is required to list. The assessor 
may take any proper form of action to compel the attendance of 
a witness. 

81. School district to he designated.] § 81. It shall be the 
duty of assessors, when making assessments of personal prop- 
erty, to designate the number of school district or districts in 
which each person assessed is liable for tax ; which designation 
shall be made by writing the number of the district opposite 
each assessment, in a column provided for that purpose in the 
assessment book. 

82. When property in several districts.] § 82. When the per- 
sonal property of any person is assessable in several school dis- 

(1) Tlie omission of tlxe assessor to call on persons for a list of their taxable prop- 
erty, affords no ground for restraining the collection of the tax. DuPage County v. Jenks, 65 111. 
R., 275. 

Tlie assessor has no power after he has accepted from the owner a list and 
valuation of his property, arbitrarily and without notice to the owner, to alter the assess- 
ment and materially increase the valuation of his property. First National Bank v. Cooketal., 
77 111. R., 622. 

In the aosence of proof to the contrary, it will be presumed that an assessment 
of property for taxation has been properly made, and the tax levied is just and proper, and this 
especially where no complaint by the party assessed has been made to the township board of 
review, or to the county board. Beers et al. v. The People ex rel., 83 111, R., 488. 



DIY. VII.] REVIEW BY TOWN BOARD. 315 

tricts, the amount in each shall be assessed separately, and the 
name of the owner placed opposite each amount. [See § 23. 

83. When assessor to fix value.] § 83. In all cases of failure 
to obtain a statement of personal property, from any cause, it 
shall be the duty of the assessor to ascertain the amount and 
value of such property, and assess the same as he believes to be 
the fair amount and value thereof. [See § 26. 

84. Owner may require list of Valuation.] §84 The assessor, 
when requested, shall deliver to the person assessed a copy of 
the statement of property hereinbefore required, showing the 
valuations of the assessor of the property so listed ; which copy 
shall be signed by the assessor. 

85. Assessor to use forms.] § 85. Assessors, in the execution 
of their duties, shall use the forms and pursue the instructions 
which shall, from time to time, be transmitted to them by the 
auditor, or that may be furnished to them by the county clerk or 
other officer, in pursuance of law. 



REVIEW 0E ASSESSMENT BY TOWN BOARD, IN COUNTIES UNDER TOWN- 
SHIP ORGANIZATION. 

Section. 

86. Time of meeting — Proceedings. 

87. Notice of Meeting. 

88. Failure, etc., not to vitiate assessment, except, etc. 

86. Time of meeting — Proceedings.] § 86. In counties under 
township organization, the assessor, clerk and supervisor of the 
town shall meet on the fourth Monday of June, in the year 
eighteen hundred and eighty, and every fourth year thereafter, 
for the purpose of reviewing the assessments of real and per- 
sonal property in such town. And on the fourth Monday of 
June, in every year, for the purpose of reviewing and correcting 
the assessment of personal property, and of improvements upon 
real property, made or destroyed. And on the application of 
any person considering himself aggrieved, or who shall complain 
that the property of another is assessed too low, they shall re- 
view the assessment, and correct the same as shall appear to 
them just. No complaint that another is assessed too low shall 
be acted upon until the person so assessed, or his agent, shall be 
notified of such complaint, if a resident of the county. Any two 
of said officers meeting, are authorized to act, and they may ad-, 
journ from day to day till they shall have finished the hearing of 
all cases presented on said day. Property assessed after the 
fourth Monday of June shall be subject to complaint to the 



316 REVENUE. [DIY. TIL 

county board, subject to the rules specified in this section.(l) 
(As amended, 1879. * 

87. Notice of meeting.] § 87. The assessor shall cause at 
least ten days previous notice of the time and place of such 
meeting, to be given by posting notices in at least three public 
places in such town. (2) 

88. Failure not to vitiate, except, etc.] § 88. The failure to 
give such notice or hold said meeting shall not vitiate such 
assessment, except as to the excess of valuation or tax thereon 
shown to be unjustly made or levied. [See § 191, 280, 283. 

RETURN OF ASSESSOR TO COUNTY CLERK. 
Section. 

89. Assessor to add up column, etc. 

90. Return— Form. 

91. Schedules and statements delivered and preserved. 

92. Books delivered to town clerk — Review of assessment. 

89. Assessor to add up columns, etc.] § 89. The assesor shall 
add up and note the aggregate of each column in his assess- 
ment books of real and personal property and improvements, 
and shall also add in each book, under proper headings, a 
tabular statement, showing the footings of the several columns 
upon each page ; and shall add up and set down, under the re- 
spective headings, the totals of the several columns. When an 
.assessor returns several assessment books of real or personal 

(1) The provision requiring tiie assessor, town clerk and supervisor to attend 
at the time and place specified in the notice, for the purpose of reviewing the assessment is im- 
perative : and without such meeting no taxpayer can be bound by the assessment. When one 
party proved that the town clerk was not present at such meeting, held, to tbrow on the other 
party the burden of proving that the other two complied with the law, if it is conceded that two 
had the power to act. The owner oi the land, on trial of a tax title, has the right to raise ob- 
jections of this character. Hough v. Hastings, 18 111. E., 312. 

Where the assessor and town clerk, met, and duly organized the board for the 
purpose of reviewing the assessments, and no person appeared before them to object, held to be 
valid. The law expressly authorizes a majority of the board to act. And even if a person 
would have the right to appear before them and object to final action without the presence of 
the supervisor, yet the entire collection of taxes for that reason, in such case cannot be arrested. 
People v Sullivan, 43 111. R., 415. 

W here a party whose property is assessed too high fails to apply to the asses- 
sor, town clerk and supervisor in counties not under township organization on the 4th Monday 
of June for the purpose of reviewing the same, or to the county board if the property 
is assessed after the 4th Monday of June, he cannot have relief in a court of equity, he 
having had a complete remedy at law and failed to take advantage of the same. Adsit v. Lieb 
<rt«t,-76Hl.R.,.201. 

The revenue law recognizes the fact that errors may he made and wrongs com- 
mitted in the valuations placed upon the various classes of property by assessors. It provides 
times and places where the aggrieved taxpayer may obtain relief. (Sections 86 and 97), If he 
fails to take advantage of the opportunity thus afforded he has no further redress. No State or 
local official can interfere, and in the absence of fraud or lack of power in the assessor the 
■courts themselves are powerless to give relief against an excessive valuation. Opinion Auditor 
Needi.es, March 13th, 1878. 

(2) The failure to give the notice or hold a meeting by the assessor, supervisor, 
■and town clerk, to hear complaints against assessments for taxes, or any other error or infor- 
mality in the proceedings of any of the officers connected with the assessment, levy or collec- 
tion, not affecting the substantial justice of the tax itself, will not, under the statute, in any 
-manner vitiate the tax or assessment. Beers et al. v. The People ex rel., 83 111. R.. 488. 

* Amended, 1881. See Appendix, p.483. 



DIV. VII. ] RETUKN OF ASSESSOE TO COUNTY CLERK. 317 

property, tie shall, in addition, to the tabular statements herein 
required, return a statement in like form showing the totals of 
all the books. [As amended, 1879. 

90. Return — Form.] §90. The assessor shall, on or before 
the first day of July of the year for which the assessment is 
made, return his assessment books to the county clerk, verified 
by his affidavit, substantially in the following form :(1) * 

State of Illinois, ) 

County, 5 

I, , assessor of , do solemnly swear that the book to which 

this is attached contains a correct and full list of all the real property (or 
"personal property" or improvements, as the case may be,) subject to 

taxation in, , so far as I have been able to ascertain the same; and 

that the assessed value set down in the proper column opposite the several 
kinds and descriptions of property is, in each case, the fair cash value of 
such property, to the best of my knowledge and belief, (where the assess- 
ment has been corrected by a town board, "except as corrected by the 
town board,") and that the footings of the several columns in said book, 
and tabular statement returned herewith, is correct, as I verily believe. 

[As amended, 1879. 

91. Schedules and statements delivered, etc.] § 91. The 

assessor shall at the same time deliver to the county clerk all 
the schedules and statements of personal property which shall 
have been received by him, indorsed with the name of the per- 
son whose property is listed, and arranged in alphabetical order ;, 
and the clerk shall preserve the same in his office for two years 
thereafter. (2) 

92. Books delivered to town clerk— Review of assessment.] 

§ 92. The several assessment and collectors books shall be filed 
in the office of the county clerk : Provided, that the county 
clerk shall, in the month of April, in any year, deliver to the 
town clerks of the several towns in the county, if required so to 
do, an abstract of the assessment of real estate for such town 
for the preceding year, showing in whose name assessed, the 
description of the tract or lot, and the total assessed value ; and 
shall, also in the said month of April, in each year, deliver to 
said town clerks of the several towns in the county, the assess- 
ment books of the personal property of their respective towns, 
together with the assessment of improvements made or destroyed 
of the previous year ; such books to be returned by town clerks 
to the county clerks office before the first of July, of the same year. 

(1) A failure of a town assessor to make return, of the assessment books to the 
county clerk, on or before the first of July, of the year Avhen the assessment was made will not 
render the assessment ii valid. Purrington et al. v. The People ex rel, 79 111. R., 11 ; Euright v. The 
People ex rel, 79 111. R., 214. See pott, § 280. 

(2) The lists under the above provision cannot lawfully be returned to the town 
clerk, even if so required by the town authorities. If they are so returned and filed by the town 
clerk, he cannot recover therefor for filing them. No obligation is thereby imposed on the town. 
Town of Charlestown v. McCrory, 36 111. R., 456. 

* Amended, 1881. See Appendix, p. 483. 



318 KEVENUE. [DIV. VII. 

On the application of any person considering himself aggrieved, 
or who shall complain that the property of another is assessed 
too low, the assessor, clerk and supervisor of such towns shall, 
at a meeting to be held on the second Monday of June in each 
year, excepting the years for the general assessment of real 
estate, review the assessment of any real estate from such ab- 
stract, and correct the same as shall appear to be just. No 
complaint that the real estate of another is assessed too low, 
shall be acted upon until the owner of such real estate, or his 
agent, if a resident in such county, shall be notified of such com- 
plaint. All taxes thereafter extended upon such real estate, prior 
to the next general assessment of real estate, shall be extended 
upon such equalized assessment, as modified by the rates of ad- 
dition or deduction determined by the state and county boards of 
equalization ; and the said assessor, clerk and supervisor shall 
report in writing, on or before the first day of July next there- 
after, their action at such meeting to the county clerk of such 
county, who shall make the necessary changes in the general 
real estate assessment books. [As amended, 1879. * 

PAY OF ASSESSOES AND DEPUTY ASSESSORS. 
Section. 

93. How fixed and paid. 

94. Detailed accounts of time— Not to be paid until returns made. 

93. How fixed and paid.] § 93. The pay of assessors and 
deputy assessors shall, from time to time, in counties not under 
township organization, be determined and fixed by the county 
board, and in counties under township organization, by the town 
board of auditors. Such pay shall be for the time necessarily 
employed in making the assessment, to be paid county assessors 
and their deputies out of the county treasury, and town assess- 
ors and their duputies out of the town treasury. (1) [See "Town- 
ship Organization Act," Art. 15. " Counties," § 38, post Rev. 
Stat., ch. 53, § 36. 

94. Detailed account of time— Not to be paid until, etc.] § 94. 
Assessors and deputy assessors shall make out their accounts in 
detail, giving the date of each day which they shall have been 
employed, which account they shall verify under oath. The 
assessor shall not be entitled to compensation until he shall 

(1) The Board, of Town Auditors may, whenever under the circumstances, 

they think an assessor is entitled to it, allow him for the time reasonably and necessarily occu- 
pied is making the assessment after the first day of July. Opinion Att'y Gen. Edsall, Aug. 18, 
■1873. See ante, \ 76, p. 312. 

If an assessor and treasurer receive fees in excess of his compensation as 

■fixed by the county board and refuses or neglects to render an account thereof, a court of equity 
will have no jurisdiction to compel an account, there being a complete remedy at law against 
him personally or upon his official bond. County of Clinton v. Schuster, 82 111. R., 137 

=* Amended, 1881. See Appendix, p. 4-83. 



©IV. VII.] DUTIES OF CLEEK — EQUALIZING ASSESSMENT. 319 

have filed the lists, schedules, statements and books appertain- 
ing to the assessment of property for such year, in the office of 
the county clerk — the books to be accurately made and added 
up. An assessor or deputy assessor shall not be entitled to pay 
unless he has performed the labor and made return in strict 
^compliance with law. 

DUTIES OE CLERK ON RETURN OF ASSESSMENT BOOKS. 

Section. 

95. Clerk to correct errors and supply omissions. 

96. Further corrections. 

95. Clerk to correct errors, etc.] § 95. The clerk, upon re- 
ceipt of the assessment books of real property, shall correct all 
-errors of whatsoever kind which he may discover, and add the 
name of the owner, if known, when the same does not alreadjr 
appear, and the description of all real property which has been 
omitted by the assessor, and is liable to taxation. [See § 27^ 

96. Further Corrections.] § 96. If the assessor has listed and 
assessed any real property not returned by the auditor to the 
clerk, the c'erk shall immediately advise the auditor thereof, who 
shall ascertain if the same is taxable, and advise the clerk. If 
taxable, the clerk shall enter the same in the list of taxable prop- 
erty in his office ; if not, he shall correct the assessment books. 

EQUALIZATION OF ASSESSMENTS BY THE COUNTY BOARD. 

Section. 

97. At July meeting. 

97. At July meeting.] § 97. The county board, at a meeting 
to be held for the purpose contemplated in this section, on the 
second Monday in July, annually, after the return of the assess- 
ment books, shall — (1) 

(1) The "board of Supervisors can equalize assessments, but have no power to 

raise the assessment of personal property "beyond the amount returned by the assessor; and if 
they do so. the collection of the tax upon such raised assessment will be enjoined by a court of 
chancery. McConkey v. Smith. 73 111. R., 313 

Such board has no jurisdiction to increase the valuation of personal property for taxation, 
•except such as is assessed after the fourth Monday of June, the time fixed for reviewing the 
assessment by the assessor, town clerk and supervisor. If such hoard attempts to increase the 
valuation of property assessed before that time, its action will be void, and the taxes levied on 
the increased valuation will be enjoined. Coolbaugh et al. v. Huck et al., 86 111. R., 600. 

In equalizing assessments as "between townships the board of supervisors are only 
authorized to increase or diminish the aggregate valuation of real estate in any town by adding or 
deducting such sum upon the hundred dollars, as they may deem necessary to produce a just 
relation between all the valuations of real estate in the county. The word*" dollars" has evi- 
dently been Fccidently omitted after the word " hundred " in the fourth paragraph of the above 
section. The board is not authorized in this proceeding to add a certain sum to each acre of 
land in a township. If, in proceeding, the board act illegally, it will not vitiate or change the 
legal acts of the assessors. Until legallv changed or vacated, their assessments are binding on the 
tax payers. People v. Allen, 43 111. R., 460. 

The only power the board have over the assessment roll is, to ascertain if the 
^valuation in one town or district, bear. a just relation to all the towns and districts in the county, 



320 REVENUE. [DIV. VII. 

First — Assess all such lands or lots as. have been listed by the 
county clerk, and not assessed by the assessor. Said board may 
make such alterations in the descriptions of real property as it 
shall deem necessary. 

Second — On the application of any person considering himself 
aggrieved, or who shall complain that the property of another is 
assessed too low, they shall review the assessment and correct 
the same as shall appear to be just. No complaint that another 
is assessed too low shall be acted upon until the person so as- 
sessed or his agent shall be notified of such complaint, if a resi- 
dent of the county. 

Third — To hear and determine the application of any per- 
son who is assessed on property claimed to be exempt from 
l taxation. If the board shall decide that any such property is 
not liable to taxation, and the question as to the liability of such 
property to taxation has not been previously determined, as here- 
rafter provided, the decision of said board shall not be final, 
unless approved by the auditor of public accounts ; and it shall 
be the duty of the county clerk, in all such cases, to make out 
and forward to the auditor a full and complete statement of all 
the facts in the case. If the auditor is satisfied that such prop- 
erty is not legally liable to taxation, he shall notify the clerk of 
his approval of the decision of the board, and the said clerk shall 
correct the assessment accordingly. But if the auditor is satis- 
fied that such property. is liable to taxation, he shall advise the 
clerk of his objection to the decision of the board, and give notice 
to said clerk that he will apply to the supreme court in either di- 
vision, specifying at what term thereof, for an order to set aside 
and reverse the decision of the county board. Upon the receipt 
of such notice, the clerk shall notify the person making the ap- 



and if it does not, the statute authorizes them to increase or diminish the aggregate valuation of 
the real estate in any town, or district, by adding or deducting such sum upon the hundred as 
may, in their opinion be necessary to produce such relation. And in order to effect this just re- 
lation, the board must include unimproved as well as improved lands. The People ex rel. v. 
Nichols, 49 111. R., 517. 

The equalization must be made so as not to reduce the aggregate valuation of the county; 
what is taken from one town must be added to another. The board have no authority, how- 
ever, to equalize the valuation of personal property in manner as they have in regard to real 
estate ; corrections in this respect can be made on application of the party aggrieved, under sec- 
tion 13 of this article. Opinion Auditor Miner, Sept. 22, 1869. 

While the law does not allow the aggregate valuation of the county to be reduced, there is no 
prohibition against an increase to such an amount as is incidental to an equalization, and when 
the equalization is made pursuant to law and according to the best judgment of the board, it 
should be sustained. Opinion Auditor Miner, Jan. 30, 1868. 

It is thought that the board of supervisors cannot lawfully adopt the valuation made by the 
State board, for the purpose of local taxes. Opinion Auditor Miner, April 27, 1869. 

The county Ijoard may hear and determine individual complaints against an 
assessment for taxation through a committee of its members, to whom such matters may be re- 
ferred. And if such committee give notice of the time and place of their meeting to receive 
complaints, and report their action which is approved by the board, this will be a sufficient 
compliance with the law. Beers et al. v. The People ex rel., 83 111. R., 488. 

No appeal lies to the circuit court from the decision of the board of supervisors, in reference 
to property claimed to be exempt from taxation. Worthington v. Co. of Pike, 23 111. R., 363. 



DIV. VII.] REPORT OF ASSESSMENT BY CLERK TO AUDITOR. 321 

plication aforesaid. It shall be the duty of the auditor to file 
m the supreme court a certified statement of the facts, certified 
by the clerk, as aforesaid, together with his objections thereto, 
and the court shall hear and determine the matter as the right of 
the case may be. If the board shall decide that property so 
claimed to be exempt is liable to be taxed, and the party aggrieved 
shall at the time pray an appeal, a brief statement in the case 
shall be made by the clerk, and transmitted to the auditor, who 
shall present the case to the supreme court in like manner as 
hereinbefore provided. In either case, the collection of the tax 
shall not be delayed thereby, but in case the property is decided 
to be exempt, the tax shall be abated or refunded. 

Fourth — It shall ascertain whether the valuations in one town 
or district bear just relation to all the towns or districts in the 
county ; and may increase or diminish the aggregate valuation of 
property in any town or district, by adding or deducting such 
sum upon the hundred as may be necessary to produce a just re- 
lation between all the valuations of property in the county, but 
shall, in no instance, reduce the aggregate valuation of all the 
towns or districts below the aggregate valuation thereof, as 
made by the assessors ; neither shall it increase the aggregate 
valuation of all the towns or districts, except in such an amount 
as may be actually necessary and incidental to a proper and just 
equalization. It may consider lands, town or city lots, personal 
property, and railroad property (except "railroad track" and 
"rolling stock,") separately, and determine a separate rate per 
cent, of addition or reduction for each of said classes of property, 
as may be necessary to a just equalization of the assessed value 
of said classes of property within the respective towns, and of 
the same between the several towns or districts in the county. 
If the county board of any count}^ shall find the aggregate assess- 
ment of the county is too high or too low, or is generally so un- 
equal as to render it impracticable to equalize such assessment 
fairly, they may set aside the assessment of the whole county or 
of any township or townships therein, and order a new assess- 
ment, with instructions to the assessors to increase or diminish 
the aggregate assessment of such county or township, as the case 
may be, by such an amount as said board may deem right and 
just in the premises, and consistent with this act. 

REPORT OF ASSESSMENT BY CLERK TO AUDITOR, FOR EQUALIZATION. 
Section. 

98. Report of assessment by the clerk to the auditor for equalization. 

99. Where assessments not all in. 

98. Clerk's report to auditor,] § 98. On or before the tenth 
day of July, annually, it shall be the duty of county clerks, upon 
21 



322 REVENUE. [DIV. VII. 

the receipt of the assessment books, to make out and transmit to 
the auditor an abstract of the assessment of property, for such 
year, showing the number, value and average value of each kind 
of enumerated property as shown by the assessment; the value 
of each item of unenumerated property, and total value of per- 
sonal property, the length of main track, the length of side track, 
and the numbers, values and average values of each separate item 
of railroad property ; the number of acres, value and average 
value of improved lands ; the number of acres, value and average 
value of unimproved lands ; the total number of acres, total value 
and average value per acre, of all lands ; the number, value and 
average value of improved town and city lots ; the number, value 
and average value of unimproved town and cit}* lots ; the total 
number of lots, value and average value of all lots, and the total 
value of all property. Said abstracts shall be made out on 
blanks, which it shall be the duty of the auditor to furnish the 
county clerks for that purpose. The values to be given in said 
abstract shall be the assessed valuations, except in the case of 
railroad property, denominated "railroad track" and "rolling 
stock," the value of which shall be given as returned by the rail- 
road company to the county clerk. The county clerk shall, at 
the same time and accompanying said abstract, furnish a detailed 
statement of the railroad property denominated " railroad track " 
and "rolling stock," reported by each road located in or through 
their counties. If there are any roads so located that have not 
made their reports as required by this act, the clerk shall report 
the fact, giving the name of such railroad. [As amended, 1879.* 

99. When assessments not all in.] § 99. It shall be the duty 
of the county clerks, in case of failure of any assessor to make re- 
turn of assessment within the time specified in this act, to transmit 
a statement of the assessment in all the towns or districts from 
which returns have been received, together with a statement of 
the amount of taxable property assessed in the defaulting towns or 
districts for the previous year. 

STATE BOARD OF EQUALIZATION. (1) 

Section. 

100. Members. 

101. Election— Term of office — Vacancy. 

102. Oath. 

103. Chairman— Secretary— Employees. 

104. Duties of secretary. 

105. Annual meeting of board. 

106. Property to be classified. 

107. Rule for equalizing personal property. 

(1) Tlie act to establish a state Iboard of equalization of assessment, is held not t© 
be unconstitutional. People ex rel, etc. v. Salomon, 46 111. R., 342. 
* Amended-, 1881. See Appeedix.p. 484, 



DIV. VII. ] STATE BOABD OF EQUALIZATION. 323 

108. Board to assess capital stock of corporations, except, etc. 

109. Board to assess " railroad track " and " rolling stock "—etc. 

110. Capital stock of railroads and telegraphs— distribution of value, etc. 

111. Lands, how equalized. 

112. Combined table— Final examination. 

113. Failure to return assessments. 

114. When equalization complete. 

115. Proceedings of board published, etc. 

116. Rooms, fuel, etc.— Compensation. 

100. Members.] § 100. The state board of equalization shall, 
at the expiration of the term of office of the members now forming 
said board, consist of one member from each congressional district 
in the state, elected as hereinafter provided, and the auditor of 
public accounts. 

101. Election— Term of office— Vacancy.] § 101. The quali- 
fied electors of each congressional district shall, at the general 
election in November, 1872, and every four years thereafter, elect 
one of their number to serve as a member of said board of equali- 
zation, who shall hold his office for four years, and until his suc- 
cessor is elected and qualified. The returns of the poll-books and 
certificates of election shall be governed by the laws regulating the 
election of members of congress ; and in case of vacancy occurring 
in said board by death, resignation or otherwise, it shall be the 
duty of the governor to appoint some person (having the qualifi- 
cations of an elector in the district in which such vacancy occurs) 
to fill the same until the next regular election for members of said 
board. [See "Elections," § 26, post. 

102. Oath. § 102. Each member of said board, before entering 
upon the duties of his office, shall take the oath (or affirmation) 
prescribed by the constitution of this state. 

The constitutional provision, which requires the value of personal property 
for taxation " to be ascertained by some person or persons to be elected or appointed in such, 
manner as the General Assembly may direct and not otherwise," does not prohibit it from creat- 
ing a State Board of Equalization and investing it with power to equalize the assessment of the 
different counties, for the purpose of producing uniformity in the valuation. Adsit v. Lieb, 76 
111. R., 198. 

No constitutional mandate is violated in making the State Board of Equali- 
zation the exclusive judges of the value of any and all property. Pacific Hotel Co. v. Lieb, et al.. 
83 111. R., 602. 

The increase or reduction, determined hy the State Board of Equalization to be 
made on the assessment of property in any county, should be extended on the valuation as 
equalized by the board of supervisors. ' As to moneys and credits, it is considered that they are 
affected in precisely the same way, and to the same extent as other property by the action o± the 
State board. Opinion Auditor Miner, Oct. 3, 1867. 

The equalization lave intends that the rate of deduction or addition determined 
by the State Board of Equalization, shall be applied to the assessed value of property in the 
counties, after all the corrections and equalizations have been made by the county authorities. 
The law does not require any county, town or individual to pay a specific amount as tax; the 
requirement is (and no other would be constitutional) that each person and corporation " shall 
pay a tax in proportion to the value of his or her property." and certain rates of tax are imposed 
on the valuation of all property, as assessed, corrected, and equalized. Opinion Auditor Miner, 
Nov. 13, 1868. 

The State Board of Equalization, in assessing property of corporations, does not 
act as a board of review, as in respect to other kinds of property, but as an original assessor. 
Pacific Hotel Co. v. Lieb et at., 83 111, R., 602. 



324 EEVENUE. [DIY. VII. 

103. Chairman— Secretary— Employees.] § 103. At the first 
meeting of said board, quadrennially, it shall organize by selecting 
one of its members as chairman, and appointing a secretary; and 
may, from time to time, select such employees as may be deemed 
necessary. The secretary shall take the oath prescribed by the 
constitution. 

104:. Duties of secretary.] § 104. It shall be the duty of the 
secretary of said board, under the direction of the auditor of pub- 
lic accounts, to compile the abstracts of assessments received from 
the county clerks into tabular statements, convenient for the use 
of the board; which statements and the original abstracts shall be 
submitted to the board on the first day of its session in each year, 
or as soon thereafter as the board is organized. The secretary 
shall perform such duties in vacation as shall be assigned to him 
by the board. 

105. Annual meeting of board.] § 105. Said board shall as- 
semble at the state capital on the second Tuesday in the month of 
August, annually, and examine the abstracts of property assessed 
for taxation in the several counties of this state, as returned to the 
auditor, and shall equalize the assessments as hereinafter provided : 
but said board shall not reduce the aggregate assessed valuation 
in the state ; neither shall it increase said aggregate valuation, ex- 
cept in such an amount as may be reasonably necessary to a just 
equalization, and not exceeding one per cent, on such aggregate 
assessed valuation; but this rule shall not apply to railroad 
property. 

106. Property to be classified.] _ § 106. Said board in equali- 
zing the valuation of property as listed and assessed in the differ- 
ent counties, shall consider the following classes of property 
separately, viz : personal property, railroad and telegraph property ; 
lands, and town and city lots; and, upon such consideration, deter- 
mine such rates of addition to or deduction from the listed or as- 
sessed valuation of each of said classes of property in each county, 
or to or from the aggregate assessed value of each of said classes 
in the state, as may be deemed by the board to be equitable and 
just — such rates being in all cases even and not fractional ; and 
such rates, as finally determined by said board, shall not be com- 
bined. 

107. Rule for equalizing personal property.] § 107. In equal- 
izing the value of personal property between the several counties, 
said board shall cause to be obtained the state averages of the 
several kinds of enumerated property, from the aggregate footings 
of the number and value of each ; and the value of the several 
kinds of enumerator] property in each county shall be obtained at 
those average values ; and the value of enumerated property thus 



DIV. VIL] STATE BOARD OF EQUALIZATION. 325 

obtained, as compared with the assessed value of such property 
in each county, shall be taken by said board to obtain a rate per 
cent, to be added to or deducted from the total assessed value of 
personal property in each county: Provided, that whenever in the 
opinion of the board it is necessary, to a more just and equitable 
equalization of personal property, that a rate per cent, be added 
to or deducted from the value thus obtained in any one or more of 
the counties, said board shall have the right so to do ; but the rate 
per cent, hereinbefore required shall first be obtained to form the 
basis upon which the equalization of personal property shall be 
made. 

108. Board to assess capital stock of corporations, except, 
etc., — Extension of tax.] § 108. The state board of equalization 
shall assess the ' capital stock of each company or association, 
respectively, now or hereafter incorporated under the laws of this 
state, in the manner hereinbefore in this act provided. The 
respective assessments so made (other than of the capital stock of 
railroad and telegraph companies) shall be certified by the audi- 
tor, under direction of said .board, to the county clerk of the 
respective counties in which such companies or associations are 
located, and said clerk shall extend the taxes for all purposes on 
the respective amounts so certified the same as may be levied on 
the other property in such towns, districts, villages or cities in 
which such companies or associations are located. (1.) 

109. Board to assess "railroad track" and "rolling stock" 
—Distribution of values— Extension of tax.] § 109. Said board 
shall also assess the railroad property denominated in this act as 
"railroad track" and "rolling stock;" and said board is hereby 
given the power and authority, by committee or otherwise, to 
examine persons and papers. The amount so determined and 
assessed shall be certified by the auditor to the county clerks of 
the proper counties. The county clerk shall, in like manner, dis- 
tribute the value, so certified to him by the auditor, to the county 
and to the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such "railroad track" and 
"rolling stock." And said clerk shall extend taxes against such 
values, the same as against other property in such towns, districts, 
villages and cities. 

110. Capital stock of railroads and telegraphs— Distribution 
of value— Extension of tax.] § 110. The aggregate amount of 
capital stock of railroad or telegraph companies assessed by said 



(1) It is not required that a corporation, whose property is assessed for taxa- 
tion by the State Board of Equalization, shall be notified of the assessment or the rules adopted, 
wnereby to determine the value of the property, and no right of appeal is given from the assess- 
ment. Porter et al. v. E. E. I. & St. L. E. E. Co., 76 111. R., 561 ; Adsit v. Lieb et al., 76 111. R., 201. 



326 EEVENUE. [div. vm 

board shall be distributed proportionately by said board to the 
several counties in like manner that the property of railroads 
denominated "railroad track" is distributed. The amount so 
determined shall be certified by the auditor to the county clerks of 
the proper counties. The county clerk shall, in like manner, dis- 
tribute the value, so certified to him by the auditor, to the county 
and to the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such capital stock. And said 
clerk shall extend taxes against such values the same as against 
other property in such towns, districts, villages and cities. 

111. Lands, how equalized.] § 111. Lands shall be equalized 
by adding to the aggregate assessed value thereof, in every county 
in which said board may believe the valuation to be too low, such 
rate per centum as will raise the same to its proper proportionate 
value, and by deducting from the aggregate assessed value thereof,, 
in every county in which said board may believe the valuation to 
be too high, such per centum as will reduce the same to its proper 
value. Town and city lots shall be equalized in the same manner 
hereinbefore provided for equalizing lands, and, at the option of 
said board, may be combined and equalized with lands. 

112. Combined table— Final examination.] § 112. When said 
board shall have separately considered the several classes of 
property as hereinbefore required, the results shall be combined 
into one table, and the same shall be examined, compared and per- 
fected, in such manner as said board shall deem best to accom- 
plish a just equalization of assessments throughout the state, pre- 
serving, however, the principle of separate rates for each class of 
property. 

113. Failure to return assessments.] § 113. In all cases of 
partial return from any county where the number of defaulting 
towns or districts do not exceed one-third of the whole number of 
towns or districts in the county, the board of equalization may 
estimate the valuation in the towns or districts from which returns 
have not been received, and may equalize the total valuation as in 
other cases. In cases where the defaulting towns or districts ex- 
ceed in number one-third of the whole number of towns or dis- 
tricts in the county, and in all cases of failure on the part of any 
county clerk to furnish the proper returns of the assessment of 
his county to the auditor prior to or during the meeting of the 
board of equalization, in each year, said board may, by order, 
authorize the auditor to equalize the assessment of such county 
when full returns have been received by him. 

114. When equalization completed.] § 114 When said board 
shall have completed its equalization of assessments, for any year, 
the chairman and secretary shall certify to the auditor the rates 



DIV. VII.] RATES OF TAXATION. 327 

finally determined by said board to be added or deducted from the 
listed or assessed valuation of each class of property in the sev- 
eral counties, and also the amounts assessed by said board ; and it 
shall be the duty of said auditor, under his seal of office, to report 
the action of the board to the several county clerks, immediately 
after the adjournment of said board. 

115. Proceedings of board published, etc.] § 115. A report of 
the proceedings of said board of equalization shall be published 
annually, in pamphlet form, and five thousand copies thereof 
printed, of which number each member shall be entitled to fifty 
copies, the auditor to five hundred copies, and the remainder 
thereof shall be distributed by the secretary of state to the 
several counties, in the proportion usual in similar cases. Said 
distribution shall be made by mail or express, immediately upon 
the receipt of said report from the public printer, the cost of such 
distribution to be paid by the secretary of state out of the appro- 
priation for incidental expenses. [See Rev. Stat., ch. 127, § 29. 

116. Booms, fuel, etc.— Compensation.] § 116. The secretary 
of state shall furnish such printing, fuel, lights and rooms as may 
be necessary for the transaction of the business of said board. 
Each member of said board shall receive for his services the 
sum of $5 per day during its sessions, and ten cents per mile for 
each mile necessarily traveled in going to and returning from 
the seat of government, to be computed by the auditor of public 
accounts, and no other allowance or emolument, directly or indi- 
rectly, for any purpose whatever, except the sum of $10 per ses- 
sion to each member, which shall be in full for postage, station- 
ery, newspapers, and all other incidentals and perquisites. The 
pay and mileage allowed to each member of K said board, and the 
pay allowed to its secretaries and employees, shall be certified 
by the chairman of the board to the auditor of public accounts, 
who shall issue his warrants on the state treasurer therefor. 
Said board may employ one page, at $2 per day ; two secretaries, 
at $5 per day each ; and one janitor or doorkeeper, at $3 per 
day. Two thirds of the whole number of members shall con- 
stitute a quorum, and said board may adjourn from time to time 
until the business before it is disposed of. 

KATES OF TAXATION. 
Section. 
117. Extending rates. 

117. Extending rates,] § 117. All rates for taxes, hereinafter 
provided for, shall be extended by the county clerk on the 
assessed valuation of property, as equalized and assessed by the 
state board of equalization. [See § 128. 



328 REVENUE. [DIV. VII. 



FOR STATE PURPOSES. (1) 
Section. 

118. How rate found, etc. 

119. State school tax. 

120. State revenues. 

118. How rate found, etc.] § 118. The governor, auditor and 
treasurer shall, annually, on the completion of the assessment 
and equalization of property, ascertain the rate per cent, re- 
quired to produce the amount of taxes levied by the general 
assembly. [See § 304-308. 

1 19. State school tax. ] § 119. There shall be annually assessed 
and collected, at the same time and in the same manner as other 
state taxes, such rate of tax on the equalized valuation of the 
property of this state, as is or may be provided by the laws con- 
cerning free schools, which tax shall be denominated the " State 
school tax," and the moneys arising therefrom be distributed in 
such manner as is or may be provided by the laws of this state 
concerning free schools ; and no part of the fund raised by the 
aforesaid tax shall be diverted to or used for any other purpose 
than the support and- maintenance of free schools in this state. 
[See § 304-308. 

120. Siate revenues.] § 120. The auditor shall, annually, 
compute and certify to the county clerks such separate rates per 
cent, as will produce the net amount of state taxes authorized to 
be levied — . 

First — For revenue purposes, to be designated "Revenue fund." 

Second — For interest purposes, to be designated "Interest 
fund. 5 ; 

Third — For state school purposes, to be designated "State 
school fund." 

Fourth — For such other taxes as may be required by law to be 
levied by him. 

The "Interest fund" tax shall be levied so long only as the 
same may be necessary, and shall be applied to the payment of 
interest only. [See § 304-308. 

(1) Tlie county clerk lias no discretion in acting under the ordcx-s of the board 
of supervisors, in extending taxes upon their equalization, and if he refuses to extend the tax 
upon their equalization, he does so at his peril, and can only justify such refusal on the ground 
that to do so would violate the constitution of the State. An equalization by the board of su- 
pervisors, made by arbitrarily fixing the value of improved lands in each town at a uniform 
specified valuation, is illegal, and hence, if the clerk disregards such equalization and extends 
the tax on the assessor's return, the tax is not thereby vitiated or rendered illegal. Mix v. The 
People, 72 111. R., 241. 

No order or resolution of the county board is necessary to authorize the county 
clerk in levying and extending State taxes. It is his duty tD do so under the statute. Chiniquy 
v. The People ex rel., 78 111. R., 560. 

A court of equity will never restrain the extension of a tax on the tax books, 
unless it is wholly unauthorized and void in all its parts. If any portion of the tax is valid, 
the court will never interpose, until the taxes have been extended, and not then, until the tax 
payer has paid or tendered such taxes as are legal. Ottawa Glass Co. v. McCaleb, 81 111. R., 557. 



DIY. VH.] FOR COUNTY PURPOSES — TOWNS, CITIES, ETC. 329 



FOR COUNTY PURPOSES. 
Section. 

121. County board to determine. 

121. County board to determine.] § 121. The county board of 
the respective counties shall, annually, at the September session, 
determine the amounts of all taxes to be raised for county pur- 
poses, the aggregate amount of which shall not exceed the rate 
of seventy-five cents on the one hundred dollars' valuation of 
property, except for payment of indebtedness existing at the 
adoption of the present state constitution, unless authorized by a 
vote of the people of the county. When for several purposes, 
the amount for each purpose shall be stated separately. (1) 

TOWNS, CITIES, ETC. 

Section. 

122. Certificate of rates. 

122. CerWicate of rates.] § 122. The proper authorities of 
towns, townships, districts, and incorporated cities, towns and 
villages, collecting taxes under the provisions of this act, shall 
annually, on or before the second Tuesday in August, certify to 
the county clerk the several amounts which they severally require 
to be raised by taxation, anything in their respective charters, or 
in acts heretofore passed by the general assembly of this state, 
to the contrary notwithstanding.^) [A& amended by act approved 
May 3, 1873. ' See Rev. Scat," ch. 21, § 111. 

(1) " Levy " as applied to a tax, imports the ascertainment of the amount to be 
raised, and the performance of such acts as would authorize the tax collector to proceed to col- 
lect. Handy, J., in Moore v. Foote, 32 Miss. R., 469. 479. 

The levy of a special tax for purposes not authorized by law, is void. But when 
authority exists to levy a tax to pay existing indebtedness, the levying of a tax in connection 
therewith not authorized, does not render the entire levy void -if the authorized tax can be 
separated from that unauthorized. Allen, etc., v. Peoria, etc., R. R. Co., 44 111. R., 85. See also, 
Briscoe v. Allison, 43 111. R., 29. 

A court of equity will not enjoin a tax for mere errors, if it is attempted to be 
levied by an officer de facto, under authority incident to his office; but may do so if the levy is 
by one without pretense of authority or color of office, to which such right is an incident. Stun- 
son v. Minor, 22 111. R., 602. 

The board of supervisors have no authority to instruct the county treasurer to 
withhold any part of the State tax. In case of an injunction restraining the collection of tax, 
the amount "of the State tax thus enjoined may be certified by the county clerk as a separate 
item of credit, and it will be allowed by the auditor, conditionally, until the injunction case is 
decided. Opinion Auditor Mixer, June 13, 1868. 

(2) The failure of the town clerk, to certify the levy of a town tax to the county 
clerk, within the time required by law, does not invalidate the tax. Thatcher v. The People ex 
rel.. 79 111. R., 597. 

A tax for a corporate purpose is one for the benefit of the inhabitants of the mu- 
nicipality. C. D. & V. R. R. Co. et al. v. Smith, 62 111. R., 268. 

Town officers under the township system making an appropriation to a rail- 
road company in pursuance of law, and upon the vote of the majority of legal voters of the 
town authorizing the same, are "corporate authorities" of a municipal corporation, who are 
authorized to levy taxes under the constitution of 1848. C. D. & V. R. R. Co. et al v. Smith, 62 
111. R., 268. 

The right of corporate or local taxation cannot be delegated by the legislature to 
to any but the corporate authorities. Gage v. Graham, 57 111. R., 144; Lee v. Rilggles, 62 111. R., 427. 



330 BEVENUE. [diy. vn, 



COLLECTORS BOOKS — EXTENDING BATES. 

Section. 

123. Collectors' books. 

124. How made as to townships, cities, etc. 

125. County collector to deposit books. 

126. Rates how extended. 

127. Extension of town, city, etc., taxes. 

128. State and county taxes. 

129. Forfeited property — Back taxes. 

130. Statement of auditor. » 

131. State and county equalized rates stated. 

132. Collector's warrants. 

123. Collectors' books.] § 123. The county clerk shall, annu- 
ally, make out for the use of collectors, in books to be furnished 
by the county, lists of taxable personal property, as assessed and 
equalized, and may, when authorized by resolution of the county 
board, make books for the extension of taxes on real estate for 
each year, excepting the year in which the general assessment of 
real estate is made. [As amended, 1879.* 

124. How made as to townships, cities, etc*] § 124. In coun- 
ties not under township organization, such book shall be made up 
by congressional townships, but parts or fractional townships, less 
than full townships, may be added to full townships, at the dis- 
cretion of the county board. In counties under township organ- 
ization, said books shall be made to correspond with the organ- 
ized townships. Separate books may be made for the collection 
of all taxes within the corporate limits of cities, towns and vil- 
lages. This section shall not be construed to interfere with the 
tax book provided for in this act, for the use of county collectors, 
for collecting all taxes charged against railroad property and the 
capital stock of telegraph companies. [Repealed by act approved 
May 29, 1879. Ee-enacted, 1881. See Appendix, p. 485. 

125. County collector to deposit books.] § 125. The county 
collector shall annually, immediately after the sale of delinquent 
real estate, deposit in the office of the county clerk the general 
real estate assessment and collection books, to be used for the ex- 
tension of taxes under the provisions of this act. [As amended, 
1879. * 

126. Rates— How extended.] § 126. Said clerks shall extend 
upon the assessors books the rates of addition or deduction or- 
dered by the county board and state board of equalization, in 
the several columns provided for that purpose. The rates per 
cent, ordered by the state board of equalization shall be ex- 
tended on the assessed valuation of property, as corrected and 
equalized by the county board. In all cases of extension of val- 
uations, where the equalized valuation shall happen to be frac- 

* Amended, 1881. See Appendix, pp. 484, 485. 



DIY. VII.] COLLECTORS' BOOKS — EXTENDING RATES. 331 

tional, the clerk shall reject all such fractions as may fall below 
fifty cents ; fractions of fifty cents or more shall be extended as 
one dollar. [As amended, 1879. * 

127. Extension of towns, cities, etc., taxes.] § 127. The said 
clerks shall estimate and determine the rate per cent, upon the 
proper valuation of property in the respective towns, townships,, 
districts and incorporated cities, towns and villages in their coun- 
ties, that will produce, within the proper divisions of such coun- 
ties, not less than the net amount of the several sums that shall 
be required by the county board, or certified to them according 
to law. 

128. State arid county taxes.] § 128. All taxes levied by 
proper authorities shall be extended by the respective county 
clerks upon the property in their counties, upon the valua- 
tion produced by the equalization and assessment of property 
by the state board of equalization. All taxes of a uniform rate 
throughout a town under township organization, or throughout a 
district in counties not under township organization, shall be ex- 
tended in one column. District, village, city and other taxes not 
of such uniform rate, shall be extended in separate columns pre- 
pared for that purpose. . In the extension of taxes, the clerk shall 
reject all fractions falling below half a cent, fractions of half a 
cent or more shall be extended as one cent. [As amended, 1879.^ 

129. Forfeited property— Back taxes.] § 129. In all cases 
where any real property has heretofore been or may hereafter be 
forfeited to the state for taxes, it shall be the duty of the clerk,, 
when he is making up the amount of tax due on such real prop- 
erty for the current year to add the amount of back tax, interest,, 
penalty and printer's fees remaining due on such real property, 
with one year's interest at ten per cent, on all taxes heretofore 
forfeited, and twenty-five per cent, on all taxes hereafter levied and 
forfeited on the amount of tax due, to the tax of the current year,, 
and the aggregate amount so added together shall be collected in 
like manner as the tax on other real property for that year may 
be collected. Provided, that the county clerk shall first carefully 
examine said list, and strike out therefrom all errors, and other- 
wise make such corrections as may be necessary with respect to 
such property or tax (see § 229). [As amended, 1879. 

130. Statement to auditor.] § 130. "When the books or lists 
for the collectors are completed, the county clerk shall make a 
complete statement of the assessment and taxes charged, on 
blanks, and in conformity to instructions furnished to him by the 
auditor. The clerk shall record said statement, and forward it, 
properly certified, to said auditor. 

* Amended, 1881. See Appendix, pp. 481, 185. 



332 REVENUE. [DIV. YH. 

131. State and county equalized rates stated.] § 131. It shall 
be the duty of the county clerk to make in each collector's book, 
a certificate of the rate of deduction or addition determined by 
the state board of equalization in the county to which such books 
shall pertain ; and, also, the rate of addition or deduction deter- 
mined by the county board in the town, district, city or village to 
which such book shall pertain. [See § 126. 

132. Collector's warrant.] § 132. To each assessment or col- 
lector's book, a warrant, under the hand and official seal of the 
county clerk, shall be annexed each year, commanding the col- 
lector to collect from the several persons named in said book the 
several sums entered in the column of totals opposite their re- 
spective names. The warrant shall direct the collector to pay 
over the several kinds of taxes that may be collected by him, to 
the respective officers entitled thereto, less the compensation for 
collection allowed him by law.(l) [As amended, 1879.* 

QUALIFICATION OF TOWN AND DISTRICT COLLECTORS. 
Section. 

133. Bond— Oath. 

134. Bond and oath recorded' — Lien of bond. 

133. Bond — Oath.] § 133. Every town or district collector, 
before he enters upon the duties of his office, and within eight 
days after he receives notice of the amount of taxes to be col- 
lected by him, shall execute a bond, with two or more securities, 
to be approved by the county board, or supervisor and town 
clerk of his town, as the case may require, in double the amount 
of such taxes, conditioned for the faithful execution of his duties 
as such collector. Signatures to such bond, signed with a mark, 
shall be witnessed, but in no other case shall witness be required. 
Said bond shall be substantially in the following form, to-wit : 

Know all men by these presents, that we, A. B., of the of — , 

in the county of , in the State of Illinois, as town (or district) col- 
lector, and C. D. and E. F., of the said county and state, as securities, are 
held and firmly bound unto the People of the State of Illinois, in the 
penal sum of , for the payment of which, well, and truly to be made 

(1) Where the law requires a collector's warrant to he signed by certain officers, 
and the warrant bears their signatures, but preceding one of the signatures, the word " counter- 
signed" appears, it is nevertheless a proper signing of the instrument, and forms no objection 
to it. The law is answered when the signatures of the officers named in the statute appear 
upon the instrument. Gurnee v. The City of Chicago, 40 111. R., 165. 

A collector's warrant confers the same authority, and performs the same office as 
a fi. fa. execution, and when regular and fair on its face, protects the officer and those acquir- 
ing rights under it, to the same extent as an execution. Hill et al. v. Figley, 25 111. E,., 156 

All the personal property of the tax payer is bound for the payment of his taxes, 
from the time the collector receives his warrant until they shall have been paid. The warrant, 
like an execution, operates as a lien. Hill et al. v. Figley, 23 111. R., 418. Held, that though a tax 
was illegally levied, yet the collector, who was simply the ministerial officer of the town, to 
whom a warrant was directed, regular on its face, and which he was to collect or not at his 
iperil, was not liable for the costs of an injunction restraining the collection of the tax. It seems 

* Amended, 1881. See Appendix, p. 485. 



DIV. VII.] BETUBN OF BOOKS — WABBANT. 333 



we bind ourselves, our heirs, executors and administrators, firmly by these 

presents. Signed and sealed this day of , A. D., 18 — . 

The condition of the foregoing bond is such, that if the above bound A. 
B. shall per orm all the duties required to be performed by him as collec- 
tor of the taxes for the year 18 — , in the town (or district) of , in the 

county of , Illinois, in the time and manner prescribed by law, 

and, when he shall be succeeded in office, shall surrender and deliver over 
to his successor in office all books, papers and moneys appertaining to his 
said office then the foregoing bond to be void : otherwise to remain in full 
force. A. B., [seal.] 

C. D., [SEAL.] 
E. F., [SEAL.] 

He shall also take and subscribe an oath, to be endorsed on 
the back of the bond, substantially as follows : (1.) 

I do solemnly swear that I will support the constitution of the United 
States, and the constitution of the state of Illinois, and that I will faith- 
fully discharge the duties of the office of town (or district) collector accord- 
ing to the best of my ability. 

[See § 257-263. 

134. Bond and oath recorded— Lien of bond.] § 134. The 

chairman of the county board (or town supervisor, as the case may 
require,) shall, within six days thereafter, file such bond, with 
such approval indorsed thereon, in the office of the recorder, who 
shall record the same, including the oath, in a separate book to be 
provided for the purpose, and when recorded shall be filed in the 
office of the county clerk by the recorder. Said bond, when so- 
filed for record, shall be a lien against the real estate of such town 
or district collector, until he shall have complied with the condi- 
tions thereof. 

DELIVEBY OF COLLECTOR'S BOOKS — WARRANTS. 

Section. 

135. When delivered to collector. 

136. Collector's warrant. 

137. Distress for personal tax. 

138. How to pay over taxes collected. 

139. County clerks certificate to county collector. 

135. When delivered.] § 135. The respective county clerks 
shall, on or before or within ten days after the first day of Decem. 

it would be otherwise if he had actually attempted to collect the tax. Drake et al. v. Phillips et 
al., 40 111. R., 389. 

The payment of an assessment is not voluntarily made if the collector has a 
warrant, by virtue of which he may levy and sell; and the party who has paid the money mav 
recover it of a municipal corporation ; although the assessment was illegal, the city having the 
money for its general uses. Bradford v. City of Chicago, 25 111. R., 411. 

(1) A town collector's term of office hegins when he take the first oath of office 
within 10 days after his election or appointment. If he fails to take this oath, it is deemed a re- 
fusal to serve, and the vacancy may be filled by appointment. People ex rel. v. Callaqhan, 83 111. 
R., 128. 

The county treasurer has no right to administer an oath to a township col- 
lector, and when he does, the return and affidavit of the collector thereto cannot be admittedin 
evidence to prove the facts therein stated. People, use, etc., v. Yeasel, 84 111. R., 539. 



'334 EEVENUE. [DIV. VIL 

ber, annually, or as soon thereafter as the collectors are duly quali- 
fied, deliver to them the books for the collection of taxes ; and it 
shall be the duty of the collectors, within such time, or as soon 
thereafter as they are qualified, to call at the clerk's office and 
receive said books. The tax book, provided for collecting all taxes 
charged against railroad property, and the capital stock of tele- 
graph companies, shall be delivered to the county collector within 
the same time, annually, or as soon thereafter as he is qualified. 
If the books for the collection of taxes are not completed and 
ready for delivery to the collectors at the time herein specified, 
thev shall be delivered as soon as they are completed (1; [See 
§ 285.* 

136. Collector's warrants.] § 136. To each town or district 
collector's book a warrant, under the hand of the county clerk and 
seal of his office, shall be annexed, commanding such town or dis- 
trict collector to collect from the several persons named in said 
town or district collector's book, the several sums of taxes therein 
charged opposite their respective names. [See § 132. 

137. Distress for personal tax.] § 137. In all cases the war- 
rant shall authorize the town or district collector, in case any 
person named in such collector's book shall neglect or refuse to 
pay his personal property tax, to levy the same by distress and 
sale of the goods and chattels of such person ; and it shall require 
'all payments therein specified to be made by such town or district 
collector on or before the tenth day of March next ensuing. [As 
amended by act approved May 3, 1873. 

138. How to pay over taxes collected.] § 138. The warrant 
shall direct the town or district collector, after deducting the com- 
pensation to which he may be legally entitled, to pay over to the 
proper officers the amount of tax collected for the support of high- 
ways and bridges, and to the supervisor of the town the moneys 
which shall have been collected therein, to defray town expenses ; 
to the proper school officers, the district school tax ; to the city 
or incorporated town or village treasurer, or other proper officer, 
the taxes or special assessments collected by him for such city or 
incorporated town or village, or others, as often and at such times 
as may be demanded by the proper officers; and to the county col- 
lector, the county tax and the taxes payable to the state treasury 
collected by him. 

139. County clerk's certificate to county collector.] § 139. 
On the delivery of the tax books to the town or district collectors, 
the clerk shall make a certified statement setting forth the name of 
each town or district collector, the amount of taxes to be collected 

(1) Taxes on personal property do not oecome a lien until the tax books are re- 
■ ceived by the collector. Opinion Att'y Gen. Edsall, March 13, 1877. 
* Amended, 1881. . See Appendix, p. 485. 



DIV. VII.] COLLECTION DISTKICT — COLLECTOR — VACANCIES. 335 

and paid over for each purpose for which the tax is levied in each 
of the several towns or districts, cities and villages, and furnish 
the same to the county collector. 

COLLECTION DISTRICT AND WHO COLLECTOR IN COUNTIES NOT UNDER 
TOWNSHIP ORGANIZATION. 

Section. 

140. County a district— Sheriff' collector. 

HO. County a district— Sheriff collector.] § 140. Each county 
in this state, not under township organization, shall be a collection 
district, for the purposes of this act; and the sheriffs of such 
counties shall be, respectively, ex-officio, district collectors of such 
collection districts. [See § 144. 

VACANCIES AND RESIGNATIONS. 

Section. 

141. How vacancy filled— Not to exonerate former collector. 

142. Duties of appointee. 

143. Extension of time in such case. 

141. How vacancies filled— Not to exonerate former collector.] 

§ 141. If any town or district collector in this state shall refuse to 
serve, or shall die, resign or remove out of the county, district or 
town for which he was elected or appointed, or the office becomes 
vacated in any other way, before he shall have entered upon or 
completed the duties of his office, or shall in any way be prevented 
from completing the same, the county or town board, as the case 
may require, shall forthwith appoint a collector for the remainder 
of the year, who shall give the like security and be subject to the 
like penalties, and have the same power and compensation as the 
town or district collector in whose place he was appointed, and 
the county collector shall forthwith be notified of such appoint- 
ment. Such appointment shall not exonerate the former town col- 
lector or his securities from any liability incurred by him or them. 
No resignation of a town or district collector shall be accepted, 
unless sufficient cause is shown, nor shall the person resigning be 
re-appointed to complete the collections in the same or any other 
town or district in the county. (1) 

142. Duty of appointee.] § 142. The town or district collector 
so appointed shall keep an account of all collections made by the 
former collector, so far as he can ascertain the same, and when any 
one shall prevent a receipt for taxes paid to the former collector, 
he shall mark against the amount of such taxes to whom and when 
paid. 

U) See post, " Elections," \ 126, note. People ex rel. v. Ccdlaghan, 83 HI. R., 128. 



336 EEVENUE. [DIV. VIK 

143. Extension of time in such case.] § 143. In case of such 
appointment, the chairman of the county board, or the supervisor 
of the town, may extend the time for the collection of taxes, for a 
period not exceeding twenty days, of which extension the county 
collector shall be notified. 

COLLECTORS. 

Section. 

144. Who collectors. 

145. Bond— Oath. 

146. Approved— Recorded— Sent auditor — Lien. 

147. How otherwise approved. 

148. Approval by auditor. 

149. Discharge of sureties. 

150. When collector defaults. 

151. Death of collector. 

152. Deputy collectors. 

153. Warrants to deputy collectors. 

144. Who collectors.] § 144. The treasurers of counties under 
township organization, and the sheriffs of counties not under town- 
ship organization, shall be ex-qfficio county collectors of their respec- 
tive counties. 

145. Bond — Oath.] § 145. Said collector shall, on or before 
the first day of December, annually, or as soon as he is elected 
and qualified, and before he enters upon the duties of his office as 
collector, execute a bond, in addition to his bond as treasurer, in a 
penal sum of at least double the amount of state taxes to be col- 
lected in the year next thereafter, with two or more securities, who 
shall be residents of the said county, and owners of real estate 
located within this state equal in value to the amount specified in 
the bond; which amount shall be determined, and which bond 
shall be approved, by the county board. Each name shall be re- 
cited, in full, in the body of the bond. The signatures to such 
bond, signed by a mark, shall be witnessed, but in no other case 
shall witness be required. Such bond shall be substantially in the 
following form, to-wit : 

Know all men by these presents, that we, A. B., collector, and C. D. 

and E. F., securities, all of the county of , and State of Illinois, are 

held and firmly bound unto the People of the State of Illinois, in the penal 

sum of dollars, for the payment of which, well and truly to be made, 

we bind ourselves, each of us, our heirs, executors and administrators, 
firmly by these presents. 

Signed and sealed, this day of , 18—. 

The condition of the foregoing bond is such that if the above bound A. 
B. shall perform all the duties required to be performed by him as collec- 
tor of the taxes for the year 18—, in the county of , in the State of 

Illinois, in the time and manner prescribed by law, and when he shall be 
succeeded in office, shall surrender and deliver over to his successor in 



DIV. VII.] COLLECTOES. 337 

office all books, papers and moneys appertaining to his said office, then 
the foregoing bond to be void, otherwise to remain in full force. 

A. B., [seal.] 

C. D., [SEAL.] 
E. F., [SEAL.] 

He shall also take and subscribe an oath, to be indorsed on the 
back of the bond, substantially as follows :(1) 

I do solemnly swear that I will support the constitution of the United 
States and the constitution of the state of Illinois, and that I will faith- 
fully discharge the duties of the office of county collector according to 
the best ot my ability. 

[See § 259-263, 285. 

146. Approved— Recorded— Sent auditor— Lien.] § 146. The 

collector's bond shall be approved by the county board, and 
shall be recorded on the records of said board, and forthwith 
mailed to the auditor by the county clerk. Said clerk shall 
attach his certificate to said bond, under the seal of his office, 
showing that it has been duly approved and recorded. Said 
bond, when approved and recorded, shall be a lien against the 
real estate of such collector until he shall have complied with 
the conditions thereof. 

147. How otherwise approved.] § 147. The chairman of the 
county board, the county judge and the county clerk shall have 
power and authority to approve the bond of the county collector 
in like manner as the county board has to approve said collec- 
tor's bond ; and said bond, when so approved, shall be subject 
to the several provisions of this act, the same as if approved by 
said board. 

148. Approval of bonds by auditor.] § 148. The collector's 
bond, when received by the auditor, and if found to be made in 
conformity to law, and the securities satisfactory, shall be filed 
in his office and the fact thereof certified to the county clerk. 
If the auditor finds said bond to be not in accordance with law, 
or if he has reason to doubt the sufficiency of the surety, he 
shall return the bond to the county clerk, who shall notify the 
collector to make a sufficient bond. If a new bond is required, 
it shall be approved and recorded and subject to the require- 
ments of this section, the same as the first bond given by the 
collector. No tax books or lists shall be placed in the hands of 
the county collector until the auditor's certificate, under the seal 
of his office, has been received by the county clerk, showing that 
the collector's bond has been received and filed in the auditor's 
office. Nothing in this section shall be construed as relieving 

(1) A collector of taxes, although lie may not have taken an oath of office in 
the manner prescribed by the statute, may be an officer de facto, so far as the public and third 
persons are concerned, while he retains the office, and exercises the duties of it. Guyer v. An- 
drews, 11 111. R.. 494. 

22 



338 REVENUE. [DIY. VH. 

the securities of a collector from liabilities incurred under a 
bond not approved and filed by the auditor. 

149. Discharge of sureties.] § 149. The securities on any 
bond given in pursuance of this act, or either of them, may, at 
any time after the execution of said bond, if they, or either of 
them, have good reason to believe that the officer in sfiid bond 
is about to fail to comply with the conditions thereof, file with 
the county clerk a notice in writing, verified under oath, by the 
person asking to be discharged, setting forth the facts in the 
case, and asking to be released from any further liability on said 
bond ; whereupon the clerk, with whom such notice shall be 
filed, shall notify the said officer to give additional security, equal 
to the security about to be released by the county board, which 
notice may be served by the said clerk, or by any person ap- 
pointed by said board or clerk. If the officer so notified shall 
not appear and give additional security within two days after 
notification, the county board may remove him from office ; and 
in all such cases said board shall appoint some person to fill the 
vacancy occasioned by such removal, who shall execute bond, 
qualify and perform the duties required as such officer. [See 
Eev. Stat., ch. 103, § 10. 

150. When collector defaults.] § 150. If the securities on 
any collector's bond, or either of them, shall be satisfied that 
such collector is making improper use of the funds collected by 
him, or has absconded, or is about to abscond, from this state, 
whereby said securities may become liable to pay any sum or 
sums of money, it shall be lawful for said security to sue out a 
writ of attachment against the goods and chattels of such col- 
lector in like manner as he would be authorized to do if said 
collector was personally indebted to such security ; and the 
money collected on any such attachment shall be paid into the 
state, county, town or city treasury, by the officer collecting the, 
same, in like manner as if paid over by the collector. 

151. Death of collector.] § 151. In case of the death of any 
county collector during the time the tax books are in his hands, 
and before the time specified in this act for making settlements, 
the county clerk shall demand and take charge of the tax books. 
Said clerk shall appoint one or more competent persons to ex- 
amine said tax books ; and it shall be the duty of the persons 
so appointed to ascertain the amount remaining uncollected, and 
make out a correct abstract of the same : Provided, that should 
there be but a small portion of the taxes collected at the time 
of the death of the collector, then the amount actually collected 
shall be ascertained, and the same books used in completing the 
collections. 



DIV. YII.] manner of collection of taxes. 339 

152. Deputy collectors.] § 152. Collectors may appoint depu- 
ties by an instrument in writing, duly signed, and may also 
revoke any such appointment at their pleasure ; and may require 
bonds or other securities from such deputies, to secure them- 
selves. And each such deputy shall have like authority, in every 
respect, to collect the taxes levied or assessed within the portion 
of the county, town, district, village or city assigned to him, 
which by this act is vested in the collector himself; but each 
collector shall, in every respect, be responsible to the state, 
county, towns, villages, cities, districts and individuals, compan 
ies or corporations, as the case may be, for ail moneys collected 
and for every act done by any of his deputies, whilst acting as 
such, and for any omission of duty of such deputy. Any bond 
or security taken from a deputy by a collector, pursuant to this 
act, shall be available to such collector, his representatives and 
securities, to indemnify them for any loss or damage accruing from 
any act of such deputy. 

153. Warrants to deputy collectors.] § 153. The county clerk, 
on being requested by any collector, shall attach a warrant, 
under his hand and the seal of his office, to any list furnished by 
such collector to his deputy, which warrant shall be in the same 
manner and form as is required in the original collector's list or 
book, except that the amount collected by such deputy shall be 
paid to the collector, who shall pay the same over to the proper 
officer or persons. 

MANNER m WHICH TAXES ARE TO BE COLLECTED. (1) 
Section. 

154. Kind of money receivable. 

155. How collection made. 

156. Distress for taxes. 

157. Sale of property distrained — Surplus. 

158. Removal within county. 

159. Fees on distraint. 

160. Removal from county. 

161. Collection after return to county collector. 

162. Payment on part of tracts — undivided interest. 

163. Entry of payment — Form of receipt — Evidence — Name, etc. 

154. Kind of money.] § 154. The county revenue shall be 
collected in gold and silver coin, United States legal tender notes, 
current national bank notes, county orders and jury certificates, 

(1) A court of equity will never entertain a "bill to restrain the collection of a 
tax, except in cases where the tax is unauthorized by law, or assessed on property not subject to 
taxation, or where the property has fraudently been assessed too high. C. B. & Q. It. R. Co. v. 
Cole, et al., 75 111. R., 592. 

The conrts cannot interfere to prevent the collection of taxes, unless they are 
void, or levied without power on the part of the officers executing the revenue law ; but when 
the officers, acting under the law, transcend their powers and act without warrant of law, the 
courts may give relief. Ottawa Glass Co. v. Me Caleb, etc., 81 I1L E,., 537. 



340 REVENUE. [DIV. YEk 

and in no other currency. The revenue for state purposes shall be 
collected in gold and silver coin, United States legal tender notes, 
current national bank notes, and auditor's warrants, and in no 
other currency. The revenue for city purposes shall be collected 
in gold and silver coin, United States legal tender notes, current 
national bank notes, city comptrollers', city auditors', or city 
clerks' warrants or orders on the city treasurer, and in no other 
currency. State taxes levied for any special purpose other than 
to defray the ordinary expenses of the State Government, shall 
be collected in gold and silver coin, United States legal tender 
notes, current national bank notes and in no other currency. All 
other taxes shall be collected in gold and silver coin, United 
States legal tender notes and in current national bank notes and 
in no other currency unless otherwise specially provided for.(l) 
[As amended, 1877. 

155. How collection made.] § 155. Every town collector,, 
upon receiving the tax book or books, shall proceed to collect 
the taxes therein mentioned, and for that purpose shall call at 
least once on the person taxed, or at his place of residence or 
business, if in the town of such collector, and shall demand pay- 
ment of the taxes charged to him on his property : Provided, 
that in counties not under township organization, it shall be the 
duty of the collector to give notice, in a newspaper published in 
the county, if any such newspaper there be, stating when and 
where he will attend in each precinct, for the purpose of receiv- 
ing taxes, and also by causing written or printed notices to be 
posted in three of the most public places in each precinct, stat- 
ing the time when, and the place where, he will be in such pre- 
cinct, for the purpose of collecting the taxes therein ; which said 
notices shall be published or posted at least ten days before the 
time fixed for the collection of such taxes, and said notices shall 
be deemed a sufficient demand for said taxes.(2) [As amended 
by act approved May 3, 1873. 



(1) The mandate of the State to its officers, as to the kind of funds in which 
the revenue shall be collected, cannot be disobeyed. Congress has no power over the subject.. 
State Treasurer v. Collector of Sangamon Co., 28 111. R., 512. 

Any registered toond tax collected under levy made toy the State Auditor pur- 
suant to law is declared to be a State tax by the statute and must therefore be collected in 
" gold and silver coin, United States legal tender notes, current national bank notes, or Auditor's 
warrants, and in no other currency." Opinion Auditor Needles, March 23, 1878. 

Money, whether in the State treasury, or in the hands of the collector, is alike the 
property of the State. The People v. Miner, 46 111. R., 385. 

By the new Constitution, all taxes levied for State purposes, are required to be paid into 
the State treasury. Art. 9, Sec. 7. 

(2) A mortgagor or mortgagee in possession is hound to pay the taxes on the 

mortgaged premises, the latter will be allowed therefor on foreclosure of the mortgage. Wright 
et al. v. Langley, 36 111. R., 381 ; Moore v. Titman, 44 111. R., 367. 

A party in actual possession of lands under a contract, listed in his name, is personally liable 
for the taxes. Glancey v. Elliott, 14 111. R., 458. 



£)IV. VII.] MANNER OF COLLECTION OF TAXES. 341 

156. Distress for taxes.] § 156. In case any person, company 
•or corporation shall refuse or neglect to pay the taxes imposed on 
him or them, when demanded, it shall be the duty of the collecfor 
to levy the same, together with the costs and charges that may 
accrue, by distress and sale of the personal property of the per- 
son, company or corporation who ought to pay the same. [Con- 
fined to personal property by § 137.(1) 

An assignee is bound, -while the assets remain in his hands for administration, 
■to pay the taxes assessed thereon. Eyan v. Gallatin County, 14 111. R., 82. 

A person Slaving a life estate in lands is bound to pay the taxes thereon dur" 
ing the existence of the estate, unless exempt bv the instrument creating the estate. Higgins y. 
Crosby, 40 111. R., 263 ; Waldo et al. v. Cummings et al., 45 111. R., 421. 

The assignee of a lease for the title of another, is bound to pay all the taxes on the 
^premises during his tenancy. Prettyman v. Walston, 34 111. R., 192. 

Co-tenants are equally bound to keep the taxes paid, and one who pays all taxes 
can recover of the other for the amount with interest. Morgan et al. v. Herrick, administrator, 
■ etc., et. al, 21 111. R., 481 ; Chickering, et al. v. Failes, 38 111. R., 342. 

If the taxes are paid by a tenant, it will enure to the benefit of the landlord. If by a trustee, 
or cestui que trust, to the benefit of the combined legal and equitable title claimed. Colfield v. 
Furry, 19 111. R., 183. 

An administrator is not bound by law to pay taxes on the real estate left by the 
decedent. Stone et al. v. Wood, 16 111. R., 177. 

Upon the question on -whose account and for -whom payment of taxes has been 
made, the tax receipts therefor are not conclusive evidence. Like other receipts, they are sus- 
ceptible of explanation. Hand v. Scofield, 43 111. R., 168 ; see case of Hichman v. Whetstone, 23 
111. R., 188. 

Ordinarily, a party of whom a tax is illegally collected, has an ample remedy at law by an 
.action of trespass against the officer collecting it. or bv an action of assumpsit to recover back 
the money paid. Cook County v. C. B. & Q. E. E. Co., 35 111. R., 467. 

A tax is not an ordinary debt ; it takes precedence of all other demands, and is a 
charge upon the property, without reference to tfie matter of ownership. Dunlop v. County of 
Gallatin, J 5 111. R., 9. 

A tax has been held to be recoverable by action like a debt. Ryan v. Gallatin County, 14 111. 
R., 78; Creps v. Baird, 30 Ohio R., 277. 

(1) The remedy by distress for the collection of taxes is not necessarily exclusive. 
The same remedy may be pursued as for the collection of debts. Euan v. Gallatin County, 14 111. 
R., 83. A note in the hands of an attorney for collection, the property of a delinquent tax 
payer, may be reached for the payment of the tax, by proceeding as in case of a debt. Opinion 
Auditor Miner, Feb. 13, 1868. 

A tax creates a lien, and takes precedence of judgments and all other claims, and 
no property is free from levy and sale for the payment thereof. Dennis v. Maynard et al., 15 111. 
R., 481 ; Dunlap v. Gallatin County, 15 111. R., 9. 

Household goods are not exempt from taxation nor from being distrained and sold 
for taxes. Opinion Auditor Miner, April 18, 1867 ; Dennis v. Maynard et al., 15 111. R., 481. 

Insurance companies are required to pay the tax assessed on them, and col- 
lections are to be made by distraint and sale of personal property in the same manner as that 
of other corporations or individuals. Opinion Auditor Lippincott, Feb. 21, 1870 ; Jan. 28, 1870. 

The tax on personal property cannot be carried forward from one year to an- 
other. If the tax is not paid the property must be distrained and sold unless the tax payer be- 
comes insolvent or has absconded and no property can be found. If the tax on personal prop- 
erty liable to tax for former years was omitted to be assessed, it should be assessed for the cur- 
rent year as well as for the years for which it was liabie but omitted to be assessed. Opinion 
Auditor Lippincott, Nov. 26, 1869. 

Auditor Needles has decided that, under the law as at present existing, collectors have no 
. authority to seize and sell personal property for tax on real estate. Opinion of Auditor, Dec. 
- 31, 1877. 

Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the collector, who has distrained for taxes unpaid, will not 
be liable to an action for such irregularity, which is not his fault. Exchange Bank Columbus v. 
Bines, 3 Ohio St. R., 1. 

A township collector has the right to go out of his town and to any place with- 
in his county to collect any tax, whether real or personal, assessed in his district. See g 68. 
Opinion Auditor Lippincott' Jan. 7, 1870. 

If the collector shall make a return that he could not find goods and chattels 
whereon to levy and collect the amount assessed, that will be conclusive of the fact stated. If 
rlhe return is false, the officer is responsible. City of Ottawa v. Macy et al., 20 111. R., 413. 



342 REVENUE. [DIV. VII.. 

157. Sale of property distrained— Surplus.] § 157. The collec- 
tor shall give public notice of the time and place of sale, and of 
the property to be sold, with the name of the delinquent, at least 
five days previous to the day of sale, by advertisements, to be 
posted up in at least three public places in the town or district 
where such sale is to be made. Such sale shall be by public auc- 
tion, and, if practicable, no more property shall be sold' than suffi- 
cient to pay the tax, costs and charges due. If the property 
distrained shall be sold for more than the amount of the taxes and 
charges due, the surplus shall be returned to the person in whose 
possession such property was when the distress was made, if no 
claim be made to such surplus by any other person. If any other 
person shall claim such surplus, on the ground that the property 
sold belonged to him, and such claim be admitted by the person 
for whose tax the same was distrained, the surplus shall be paid to 
such owner. 

158. Removal within county.] § 158. In case any person 
against whom a tax shall be assessed, under the provisions of this 
act, shall have removed from one town or district to another town 
or district in the same county without paying such tax, it shall be 
lawful for the collector having the tax books in which such tax is 
charged, to levy and collect such tax of the goods and chattels of 
the person assessed, in any town or district within said county to 
which such person shall have removed, or from property of such 
person wherever the same may be found in said county. 

159. Fees on distraint.] § 159. In levying on and selling per- 
sonal property for taxes, the collector shall be governed by the same 
rules and be entitled to the same fees as constables are or may be 
for like services on executions ; but in no case shall any collector 

Tlie collector, in collecting the tax charged upon his list, acts as a. ministerial 
officer, and is protected by his warrant the same as any other ministerial officer would be in ex- 
ecuting process. The rule in such case is, that if a ministerial officer executes process, upon the 
face of which it appears that the court issuing it had not jurisdiction of the subject matter or of 
the person of the defendant, the process will afford him no protection for acts done under it. 
But if the subject matter of the suit is within the jurisdiction of the court, but there is want of 
jurisdiction of the person, the officer executing the process is not liable, unless the want of juris- 
diction appears by the process. Therefore, where a county clerk places property, which is the 
subject of taxation, upon the tax list within the proper time and assesses the same with a tax, in 
pursuance of the statute prescribing his duties in this respect, but without notice to the party 
interested, the collector is not a trespasser in the collection of such tax* by reason of such want 
of notice, unless it is disclosed by the tax list and warrant, or otherwise personally known to 
the treasurer. Champaign Co. Bank v. Smith, 7 Ohio St. R., 42. 

"Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the treasurer, who has distrained for taxes unpaid, will not 
be liable to an action for suci* irregularity, which is not his fault- Exchange Bank Columbus v. 
Hines, 2 Ohio St. R., 1. 

When it becomes necessary for the collector to levy upon and sell the goods and 
chattels of any person for the collection of taxes, it will be lawful for him to sell the same at 
any time before the time he is required to pay over the money to the county treasurer, and other 
officers mentioned in his warrant, having made a levy within the proper time. Sheldon v. Van 
Buskirk, 2 Comstock R., 473. Sea post, § 169. 

A court of equity -will enjoin the sale of the property of one man levied on by 
the collector of taxes, for the taxes of another person. Deming ct al. v. James, 72 111. R.. 79. 



DTV. VII.] MANNEE OF COLLECTION OF TAXES. 343 

charge mileage, unless he is compelled to distrain property. [See 
Kev. Stat., ch. 79,§ 88, 89; Eev. Stat., ch. 53, § 41, 42. 

160. Removal from county.] § 160. In case any person 
against whom taxes have been levied, under the revenue laws of 
this state, in any county, town , city or district of this state, shall 
have removed from such county, town, city or district, after such 
assessment has been made, and before the collection of the same, 
the county clerk, when directed by the county board, shall issue a 
warrant under his hand and seal of office, directed to any sheriff, 
coroner or constable of the county, town, city or district to which 
such person may have removed, commanding such officer to whom 
the warrant may be directed to make the amount of such tax, to- 
gether with the costs and charges that may accrue, from the per- 
sonal property of the person owing such tax — distraint and sale of 
property under this section to be in the same manner as provided 
in this act for other cases of distraint and sale of personal property. 
The taxes which may be collected under this section shall be dis- 
posed of in the manner required by this act with respect to taxes 
collected in any other manner. All other parts of this act provid- 
ing for cases of failure of officers to pay over taxes, shall apply to 
all officers, collecting taxes under this section, who fail to pay over 
and correctly account at the proper time and manner for the taxes 
collected by them. 

161. Collection after return of county collector.] § 161. The 
power and duty to levy and collect any tax due and unpaid, shall 
continue in and devolve upon the county collector and his succes- 
sors in office, after his return and final settlement until the tax is 
paid; and the warrant attached to the collectors book, shall con- 
tinue in force and confer authority upon the collector to whom the 
same was issued and upon his successors in office, to collect any 
tax due and uncollected thereon, although such books may have 
been returned, or the tax carried forward into any other book. 
This section shall apply to all collectors books and tax warrants 
heretofore issued, upon which taxes may be due and unpaid, as 
well as those hereafter issued. [As amended, 1879. 

162. Payment on part of tract— Undivided Interest.] § 162. 

The collector shall receive taxes on part of any lot, piece or par- 
cel of land charged with taxes, when a particular specification of 
the part is furnished. If the tax on the remainder of such lot or 
parcel of land shall remain unpaid, the collector shall enter 
such specification in his return, so that the part on which the 
tax remains unpaid may be clearly known. The tax may be 
paid on an undivided share of real estate. In such case the 
collector shall designate on his record upon whose individual 
share the tax has been paid. 



^B^^^^H^^H 



344 EEYENUE. [DIV. VII. 

163. Entry of payment— Receipts— Evidence— Name, etc., of 
owner.] § 163. Whenever any person shall pay the taxes charged 
on any property, the collector shall enter such payment in his book, 
and give a receipt therefor, specifying for whom paid, the amount 
paid, what year paid for, the property and equalized value 
thereof on which the same was paid, according to its description 
in the collectors book, in whole or in part of such description, as 
the case msij be, and the several rates of extension of taxes, and 
such entry and receipt shall bear the genuine signature of the col- 
lector or his deputy receiving such payment ; and whenever it shall 
appear that any receipt for the payment of taxes shall be lost or 
destroyed, the entry so made may be read in evidence in lieu 
thereof. The collector shall enter the name of the owner or of 
the person paying tax, opposite each tract or lot of land, when he 
collects the tax thereon, and the postoffice address of the person 
paying said tax. [As amended, 1879. * 

SWORN STATEMENTS OF COLLECTIONS TO BE MADE — PAYMENTS. 

Section. 

164. Thirty day settlements with cities, etc. 

165. Thirty day settlements with collector. 

166. Local taxes to be paid over, etc. 

167. Final settlement for local taxes before return. 

168. Duplicate receipts. 

164. Thirty day settlements with cities, etc.] § 164. Town 
and district collectors shall, every thirty days, when required to do 
so by the proper authorities of incorporated towns, cities and vil- 
lages, road and school districts, for which any tax is collected, ren- 
der to said authorities a statement of the amount of each kind of 
tax collected for the same, and at the same time pay over to such 
authorities the amount so shown to be collected. (1) As amended 
by act approved May 3, 1873.(1) 

165. Thirty day settlements with county collector.] § 165. 

Such town and district collectors shall, every thirty days, render a 
similar account of the taxes payable to the state treasury, and of 
the county taxes, to the county collector, and at the same time pay 
over the amount of such taxes to said county collector. 

166. Local taxes to be paid over, etc.] § 166. Said town and 
district collectors shall pay over the town, road, school and other 
local taxes, as may be directed in the warrant attached to the col- 
lector's book. 



(1) "Where a collector pays school moneys Tbelongine to a school district to 

any person other than the treasurer of the proper township, he will be guilty of a breach of his 
bond, and liable to nominal damages, although the person receiving the monev, upon discovery 
of the mistake, pays over the same to the proper school district officers, so that such district in 
fact loses nothing. People, use, etc., v. Yeasel. 84 111. R., 539. 
* Amended, 1881. See Appendix, p. 485. 



DIY. VII.] RETURN TO COUNTY COLLECTOR. 345 

167. Final settlement for local taxes before return.] § 167. 

Each town and district collector shall make final settlement for 
the township, district, city, village and town taxes, charged in the 
tax books, at or before the time fixed in this act for paying over 
and making final settlement for state and county taxes collected by 
them. In such settlements, said collectors shall be entitled to credit 
for the amount of their commissions on the amount collected, and 
for the amount uncollected on the tax books, as may be determined 
by the settlement with the county collector. 

168. Duplicate receipts.] § 168. The officer to whom any such 
moneys may be paid, under the preceding sections, shall deliver to 
the collector duplicate receipts therefor. 

RETURN OF TOWN AND DISTRICT COLLECTORS TO THE COUNTY COLLECTOR. 

SECTION. 

169. When return not made. 

170. Form of return as to personal property. 

171. Credits, etc. 

172. Form of return as to real estate tax. 

173. To note what personal tax can be collected from real estate. 

174. Suit on bond. 

175. Satisfaction piece. 

176. Satisfaction piece may be recorded — Effect. 

177. "Delinquent" defined. 

169. When return made.] § 169. Town and district collectors 
shall return tax books, and make final settlement for the amount 
of taxes placed in their hands for collection, on or before the tenth 
day of March next after receiving the tax book : Provided, that 
the county collector may first notify, in writing, the several towns 
or district collectors upon that day, within twenty days after the 
tenth day of March, they shall appear at his office to make final 
settlement. [As amended by act approved May 3, 1873. See 
Oonst., art. 9, § 4.* 

170. Form of return as to personal tax.] § 170. If any town 
or district collector shall be unable to collect any tax on personal 
property, charged in the tax book, by reason of the removal or 
insolvency of the person to whom said tax is charged, or on account 
of any error in the tax book, he shall, at the time of returning his 
book to the county collector, note, in writing, opposite the name 
of each person charged with such tax, the cause of failure to col- 
lect the same, and shall make oath that the cause of delinquency 
or error noted is true and correct, and that such sums remain due 
and unpaid, and that he has used due diligence to collect the same, 
which affidavit shall be entered upon said collectors book, and be 
signed by the town or district collector. (1) [As amended, 1879. 



(1) The affidavit of the town collector as to delinquent personal property, where the 
list shows the cause of inability to collect to have been insolvency or removal, is final, when 

* Amended, 1881. See Appendix, p. 486. 



346 REVENUE. [DIV. VIL 



171. Credits, etc.] § 171. Upon the filing of said book, the 
county collector shall allow the town or district collector credit for 
the amount of taxes therein stated to be unpaid, and shall credit 
the same to the several funds for which said tax was charged. 
"When the county collector makes settlement with the county 
board, such statements shall be sufficient voucher to entitle him 
to credit for the amount therein stated, less such amount thereof,, 
if any, that may have been collected by him. In no case shall 
any town or district collector, or county collector, be entitled to- 
abatements for personal property tax until the statement and affi- 
davit are filed. [As amended, 1879. 

172. Form of return as to real estate.] § 172. Each town or 
district collector, at the time of returning his tax book to the 
county collector, shall make affidavit, to be entered upon such book 
and subscribed by the collector, that the taxes charged against 
each tract or lot, or assessment of personal property remain due 
and unpaid at the date of making such affidavit in each case where 
there does not appear in the proper column the amount of such 
taxes as having been paid to such collector, and the date of pay- 
ment and the name of any person as having paid the same; which 
affidavit shall be prima facie evidence of the facts therein stated. 
[As amended, 1879. 

173. To note what personal tax can be collected from real 
estate.] § 173. Each town or district collector shall particularly 
note, in his .returns to the county collector, all cases of personal 
property tax that he was unable to collect, which can be made 
from real estate of the person owing such tax. 

174:. Suit on bond.] § 174. If the town or district collector 
shall fail to appear and make final settlement, or pay over the- 
amount in his hands, when required in this act, the county collec- 
tor shall forthwith cause the bond of such collector to be put in 

there is no real estate. Opinion Auditor Miner, Jan. 20, 1868; City of Ottawa v. Macy, 20 111. 
R.,423. 

Town collectors can make no corrections or deductions from valuations made 
by the assessor on real or personal property. Inability to collect on account of removals or in- 
solvency of the tax payer are the only causes entitling the collector to a credit for the amount 
of such tax on personal property, in his settlement with the county collector. Opinion Auditor 
Lippincott, Feb. 7, 1870. 

Assessment of personal property creates no lien on the property ; a lien is created 
bv the delivery of the collector's books. Hill et al. v. Figley, 23 111. R., 418. It is not thought that 
a'col lector can levy on the goods owned jointly or as a company for the tax of individuals. The 
tax is a debt due from the person assessed, and is not discharged by the collector's return, delin- 
quent. The board of supervisors have authority to cause prosecution for collection. The cause 
of inability to collect personal property tax must be shown in each case, and if the affidavit 
thereto is made according to law. the county treasurer has no discretion, but must allow the 
credit. City of Ottawa v. Macy, 20 111. R., 418* The collector should be allowed time to complete 
any proceedings commenced under his warrant, before the time of its expiration. Opinion Aud- 
itor Lippincott, Feb. 17, 1869 ; Opinion Auditor Miner, May 11, 1868. 

It is not essential to the jurisdiction of the court to render judgment for taxe& 
against delinquent lands, that the town collector should make and return to the county collector 
an affidavit, showing what taxes are delinquent; the delinquent list reported by the county 
collector to the county clerk, is prima facie evidence of delinquency upon which, unless over- 
come by other evidence the court may render judgment. Fishery. The I'eojte, 84 111. R., 491. 



DIV. VII.] EETUEN OF DELINQUENT ASSESSMENTS. 347 

suit, and recovery may be had thereon for the sum due, for all 
taxes and special assessments, and twenty-five per cent, thereon 
as damages, with costs of suit. 

175. Satisfaction piece.] § 175. Upon the final settlement of 
the amount of taxes directed to be collected by any collector, in 
any of the towns or districts in this state, the county collector 
shall, if requested, give to such collector, or any of his securities, 
a satisfaction piece in writing. 

176. Satisfaction piece may be recorded— Effect.] § 176. 
Such satisfaction piece may be recorded in the recorder's office, 
and when so recorded shall operate as a discharge of the securities 
and the lien upon the property of the collector, except as to all suit& 
commenced upon such bond within three years after the recording 
of the same. 

177. Delinquent defined.] § 177. -All real estate upon which 
taxes remain due and unpaid on the tenth day of March, annually, 
or at the time the town or district collector makes return of his books 
to the county collector, shall be deemed delinquent ; and all such 
due and unpaid taxes shall bear interest after the first day of May 
at the rate of one per cent, per month until paid or forfeited ; parts- 
or fractions of a month shall be reckoned as a month, and all such 
collections on account of interest shall be paid into the county 
treasury to be used for county purposes. [As amended, 1879. 

EETUEN OF DELINQUENT SPECIAL ASSESSMENT. 
Section. 

178. To county collector — His duties — Transfer of amounts. 

179. Demand for assessment when tax paid. 

178. To county collectors— His Duties— Transfer of amounts.] 

§ 178. When any special assessment made by any city, town or 
Tillage, pursuant to its charter, or by any corporate authorities, 
commissioners or persons, pursuant to law, remain unpaid in 
whole or in part, return thereof shall be made to the county col- 
lector on or before the tenth day of March next after the same 
shall have become payable, in like forms as returns are made for 
delinquent land tax. County collectors shall collect, account 
for, and pay over the same to the authorities or persons having 
authority to receive the same, in like manner as they are required 
to collect, account for and pay over taxes. The county collector 
may, upon return of delinquent special assessments to him, trans- 
fer the amounts thereof from such returns to the tax books in 
his hands, setting down therein, opposite the respective tracts^ 
or lots, in proper columns to be prepared for that purpose, the 
amounts assessed against such tract or lot. [As amended by act 
approved May 3, 1873. See § 279, 299. 



348 REVENUE. fDIV. VII. 



179. Demand for assessment when tax paid.] § 179. When 
any special assessment is returned against property, the taxes 
upon which shall have been paid to the town or district collector, 
it shall be the duty of the county collector to cause demand to 
l>e made for the payment of such special assessment, or a notice 
thereof to be sent by mail, or otherwise, to the owner, if his 
place of residence is known. The certificate of a collector that 
such demand was made, or notice given, shall be evidence 
thereof. 

COUNTY COLLECTOR'S RECEIPTS — POWERS. 

Section. 

180. Form of receipt. 

181. Powers to collect 

180. Form of receipt.] § 180. On the application of any per- 
son to pay any tax or special assessment upon any real property, 
it shall be the duty of the county collector to make out to such 
person a receipt, in which shall be noted all taxes and assess- 
ments upon such property returned to such collector, and not 
previously paid. Said receipt shall be provided with columns 
for the state equalized value, and for the " consolidated " and 
other taxes, and shall show the several rates of extension of 
taxes. [As amended, 1879. * 

181. Powers to collect.] § 181. County collectors shall have 
the same powers, and may proceed in the same manner, for the 
collection of any tax on real or personal property, as town or 
district, collectors ; and if in any town or collection district the 
office of town or district collector is or shall become vacant, and 
such vacancy shall not be filled on or before the tenth day of 
March next following such vacancy, or if in any town or collec- 
tion district the books for the collection of taxes, for any reason, 
have not been, or shall not be, delivered to the town or district 
collector, on or before the tenth day of March in any year, the 
county clerk shall deliver all such collectors books to the county 
collector of such county having annexed to each of such books 
a warrant under the hand and official seal of the county clerk, 
commanding such county collector to collect from the several 
persons named in such books, the several sums of taxes therein 
charged opposite their respective names, and authorizing him in 
case any person named in such collectors books shall neglect or 
refuse to pay his personal property tax, to collect the same by 
distress, and' sale of the goods and chattels of such person. It 
shall thereupon be the duty of such county collector to collect 
and pay over all taxes, assessments, and other charges shown in 
such books and to do all acts, required o^ him by law, in like 

* Amended, 1881 See Appendix, p. 485. 



£>IV. VII.] ADYEETISEMENT FOE JUDGMENT AND SALE. 34$ 

manner as if such taxes, assessments, and other charges, had 
been duly returned delinquent by a town or district collector. 
The collectors books so delivered to the county collector, by the 
county clerk, shall, for all purposes, in all subsequent proceed- 
ings, be used in the same manner, and have the same force and 
effect as if said books were delivered to the town or district col- 
lectors, and duly returned by them, as provided by law. When 
any injunction restraining the collection of taxes shall be dis- 
solved after the tax books shall have been returned to the county 
collector, such taxes or the portion thereof, upon which such in- 
junction shall have been dissolved, shall be paid to the county 
collector, who shall have the same power and shall proceed in 
the same manner for the collection of such taxes, as though the 
same or such portion thereof had never been enjoined. [As 
amended, 1879. 

ADVEETISEMENT FOE JUDGMENT AND SALE. 

Section. 

182. Advertisement. 

183. Proceeding against real estate for personal tax. 

184. Figures, etc., used— Advertisement, etc. 

185. When application for judgment made, etc. 

186. Copies of papers containing advertisement. 

187. Error in advertisement. 

188. When delinquent list filed — Form of. 

189. Tax may be paid before sale. 

190. Payments reported— List corrected. 

182. Advertisement.] § 182. At any time after the first day 
of April next after such delinquent taxes and special assess- 
ments on lands and lots shall become due, the collector shall 
publish an advertisement, giving notice of the intended applica- 
tion for judgment for sale of such delinquent lands and lots, in 
a newspaper published in his county, if any such there be, and 
if there be no such paper printed in his county, then in the near- 
est newspaper in this state to the county seat of such county. 
Said advertisement shall be once published at least three weeks 
previous to the term of the county court at which judgment is 
prayed, and shall contain a list of the delinquent lands and lots 
upon which the taxes or special assessments remain due and 
unpaid, the names of owners if known, the total amount due 
thereon, and the year or years for which the same are due. Said 
collector shall give notice that he will apply to the county court, 
at the .... term thereof, for judgment against said lands and 
lots for said taxes, special assessments, interest and costs, and 
for an order to sell said lands and lots for the satisfaction thereof ; 
and shall also give notice that, on the .... Monday next suc- 
ceeding the day fixed by law for the commencement 01 such term 



'350 EEVENUE. [DIV. VII 

of the said county court, all the lands and lots for the sale o\ 
which an order shall be made, will be exposed to public sale at 
ijhe building where the county court is held in said county, for 
the amount of taxes, special assessments, interest and cost due 
thereon ; and the advertisement published according to the pro- 
visions of this section shall be deemed to be sufficient notice of 
the intended application for judgment and of the sale of lands 
and lots under the order of said court. Where the publisher of 
any paper that may have been selected by the collector shall be 
unable or unwilling to publish such advertisement, the collectoi 
shall select some other newspaper, having due regard to the cir- 
culation of such paper. (1) [As amended by act approved May 
3, 1873. See.§ 185-7. 

(1) Tlie delinquent tax list is not required toy law to be published in the paper 
having the largest circulation in the county, or out of it. Opinion Auditor Miner, March 11, 
1868. 

The publication must be made precisely as directed by law. Scammon v. City of Chicago, 40 
IU. R., 146. 

Application for judgment against delinquent lands, and for an order of sale, may 
be made to the county court at the June term. The collector is not compelled to make it at the 
May term. The People ex rel. v. Nichols, 49 111. R., 517. 

A notice which omits to state that an order for sale will be applied for when the application 
for judgment is made, is insufficient and subsequent proceedings are void. Charles v. Waugh, 
35111. R„ 315. 

The statute form of advertisement must toe strictly followed. The omission of 
the title of the collector after his name signed thereto, was held to be fatal. Spear v. Ditty, 7 Vt. 
R., 282. Where the notice was for " repairing and building bridges," and the tax authorized was 
for making and repairing roads and building bridges, it was held insufficient. Charles v. Waugh, 
35 111. R., 315. 

It is not necessary to specify in detail the several classes of tax in the advertisements of delin- 
quent lands ; this, however, does not apply to the list to be filed with the clerk, or the record for 
judgment, but to the advertisement only. Opinion Auditor Miner, March 2, 1867. 

To give the court, jurisdiction it is not necessary that the collector's notice should 
specify the first day of the term of the court to which application is made, and by authority of 
section 26 of this act, a discretion is given to the collector to select the term of court at which he 
will make application for judgment. Parks et al. v. Miller, Treasurer, etc.. 48 111. R., 360. 

The law contemplates a pertinent description of the land in the advertisement of 
sale. It should be so described that the owner may know that the tax on his land is unpaid, 
and that purchasers may know the precise land intended. A description as 485 acres of a cer- 
tain tract named, without location, is insufficient. A description as 150 acres, part of section 36, 
northwest corner, is too indefinite and defective. A description as 60 acres, part of the north 
half of sec. 13, is too vague and uncertain. A description as % of block 4, in etc., is void for un- 
certainty. A description as lot 11, block 20, Roberts & Randall's addition, with no other descrip- 
tion, except that the notice was headed 'Auditor's Office, Ramsay County, Minn., St. Paul, De- 
cember 8, 1862," is insufficient. A sale by such descriptions would confer no title. Douglas v. 
Danqerfield, 10 Ohio R.. 152 ; Stewart v. Aten, 5 Ohio R., 257 ; Laffeny v. Byers, 5 Ohio R., 558 ; 2 Id., 
287 ; 3 Id., 272; Treon v. Emerick. 6 Ohio R., 391 ; Bur chard v. Hubbard, 11 Ohio R., 316; Bidwell v. 
Coleman, 11 Minn. R.. 78 ; Bidwell v. Webb, 10 Minn. R., 59. 

The county collector has no authority to advertise delinquent lands in subdivisions different 
from the assessment. Citing Black well on Tax Titles, 330. Opinion Att'y Gen. Cole, vol. 1, p. 
392. 

Where a lot of land is listed for taxation, together with eight others, and so advertised for sale, 
but the assessment of tax is one aggregate sum on all, a separate sale and conveyance of them 
is unlawful and confers n'o title. Wiley v. Scoville, 9 Ohio R., 43. 

An omission of the record to show that a copy of the notice of an application 
for judgment against lands and lots, for taxes due therein, is filed as a part of the records of the 
court, is fatal to the application. The filing of such copy is an essential part of the necessary 
foundation for the judgment sought. People ex rel. v. The owners, etc., 82 111. R., 408. 

A certificate of publication stating that "the foregoing was duly published in the 
Peoria Democratic Press," etc., immediately following the tax list, will be held to refer to such 
tax list, and it will be presumed that the paper was a newspaper. Jackson y. Cummings, 15 111. 
i R., 451. 

The law in relation to change of venue and trial toy juiy has no application to 
proceedings for judgment against delinquent lands. Mix v. The People ex rel., 86 111. R., 312. 



jCIV. VII.] ADVERTISEMENT FOR JUDGMENT AND SALE. 351 

183. Proceedings against real estate for personal tax.] § 183. 

When it becomes necessary to charge the tax on personal prop- 
erty against real property, the county collector shall select for 
that purpose some particular tract or lots of real property owned 
"by the person owing such personal property tax ; and in his ad- 
vertisement for judgment and sale, shall designate the particular 
tract or lots of real property against which such personal prop- 
erty tax is charged, and in the list filed for judgment, the same 
facts shall be shown, and the court shall take cognizance thereof, 
s*«I give judgment against such tract or lots of real property, for 
such personal property tax.(l) [See § 255. 

184. Figures, etc., need— Advertisement, etc.] § 184 In all 

advertisements for the sale of lands and lots for taxes or special 
assessments, and in entries required to be made h^ J he clerk of 
the court or other officer, letters, figures and characters may be 
used to denote townships, ranges, sections, parts of sections, lots 
or blocks, or parts thereof, the year or the years for which the 
taxes were due, and the amount of taxes, special assessments, 
interest and costs; and the whole of the advertisement shall be 
contained in one edition of such newspaper and its supplement, 
if such supplement is necessary : Provided, that nothing contained 
in this section shall prevent the county collector from subse- 
quently advertising and obtaining judgment on lands or lots that 
may have been omitted through no fault of the collector, or that 
may have been erroneously advertised or described in the first 
advertisement. 

185. When application for judgment made, etc.] § 185. All 
applications for judgment and order of sale for taxes and special 
assessments on delinquent lands and lots shall be made at the 
May term of the county court. If, from any cause, the court 
shall not be holden at the term at which judgment is prayed, the 
cause shall stand continued ; and it shall not be necessary to re- 
advertise the list or notice required by law to be advertised before 
judgment and sale, but at the next regular term thereafter the 
court shall hear and determine the matter ; and if judgment is 
rendered, the sale shall be made on the Monday specified in the 
notice, as provided in section 182 — such Monday to be fixed by 
the county collector in the notice. If, for any cause, the collector 

The collector is not 'bound to prove, on an application for judgment against 
delinquent lands, that the land was regularly assessed, or make any proof of the acts of the 
assessor.' It will be presumed the assessor and all other officers did their duty. If any objec- 
tions exist, it is for the land owner to show them. Mix v. The People ex rel., 86 111. R., 312. 

On application for judgment, it is no defense that the property was valued too 
high, when it was not fraudently done. Spencer v. The People, 68 111. R., 510. 

(1) Personal property tax when added to real estate becomes a part of the tax 
charge upon such real estate and must so appear in the " delinquent list." Opinion Auditor 
' Needles, May 7, 1878. 



352 KEVENUE. [DIV. VII. 

is prevented from advertising and obtaining judgment at said 
term it shall be held to be legal to obtain judgment at any sub- 
sequent term of said court ; but if the failure arises by the county 
collector's not complying with any of the requirements of this 
act, he shall be held on his official bond, for the full amount of 
all taxes and special assessments charged against him : Provided? 
that any such failure on the part of the county collector shall 
not be allowed as a valid objection to the collection of any tax or 
assessment, or to a rendition of judgment against any delinquent 
lands and lots, included in the application of the county collec- 
tor : And, provided, further, that on the application for judgment, 
at such subsequent term, it shall not be deemed necessary to set 
forth or establish the reasons of such failure.(l) [As amended 
by act approved May 3, 1873. 

186. Copies of paper containing advertisement.] § 186. The 
printer, publisher, or financial officer or agent of the newspaper 
publishing the list of delinquent lands and lots, shall transmit, 
by mail or other safe conveyance, to the collector, four copies of 
the paper containing said list, to one of which copies he shall 
attach his certificate, under oath, of the due publication of the 
delinquent list for the time required by law (which copy shall be 
presented by the collector to the county court at the time judg- 
ment is prayed), and said copy shall be filed as part of the rec- 
ords of said court. Upon receipt of said papers, and on demand 
being made,- the collector shall pay to the printer the amount of 
the fees allowed by law for publishing said list and notice ; and 
it shall be his duty to file one copy of said paper in his office, and 
deliver one copy to the auditor, and one copy to the state treas- 
urer, who shall file and safely preserve them it their respective 
offices.(2) [See Eev. Stat., ch. 53, § 22. 

187. Error in advertisement.] § 187. In all cases where there 
is an error in the advertised list, the fault thereof being the print- 

(1) Tine collector may apply- for judgment against delinquent lands at the May 

Term, and if from any cause, it is not made, or the judgment recovered, at that term, he may 
apply at any subsequent term, and he may fill the first blank in his notice, given in Sec. 182 of 
the Revenue Law, with the term, to which he makes the application, and the second blank 
with the Monday on which the sale is to be made. Beers et at v. The People ex rel., 83 111. R., 488 

(2) An affidavit of the printer of a newspaper of the publication of the delin- 
quent list, and notice of applying for judgment properly sworn to, which states the day when 
the publication was made, and the paper in which the list and notice were inserted, will be 
sufficient proof of publication to confer jurisdiction on the court to render judgment. Buck v. 
The People, 78 111. R., 560. 

A certificate of the publisher of a newspaper sworn to, showing a state of facts 
which meets the requirements of the law as to the publication of notice of an application for 
judgment for taxes against delinquent lands, is sufficient, though it may not be in the precise 
words of the statute. Fisher v. The People, 84 111. R., 491. 

"When the delinquent list is placed in the hands of the printer by the collector, 
he is authorized to charge and collect the printers fee provided for by law, although the owner 
of land may offer to pay the taxes before the paper containing the list is actually published. 
Thatcher v. The People, 79 111. R., 597. 



DIV. VII. j ADVEKTISEMENT FOE JUDGMENT AND SALE. 353 

er's, which prevents judgment from being obtained against any 
tracts or lots, or against all of said delinquent list, at the time 
stated in the advertisement that judgment will be applied for, the 
printer shall lose the compensation allowed by this act, for such 
erroneous tracts or lots, or entire list, as the case may be. 

188. Delinquent list— Form.] § 188. The collector shall tran- 
scribe into a book, prepared for that purpose, and known as the tax, 
judgment, sale, redemption, and forfeiture record, the list of delin- 
quent lands and lots, which shall be made out in numerical order, 
and contain all the information necessary to be recorded, at least 
five days before the commencement of the term at which applica- 
tion for judgment is to be made ; which book shall set forth the 
name of the owner, if known ; the proper description of the land 
or lot, the year or years for which the tax or special assessments 
are due ; the valuation on which the tax is extended ; the amount 
of the consolidated and other taxes and special assessments ; the 
costs and total amount of charges against snch land or lot. Said 
book shall also be ruled in columns, so as to show the amount paid 
before the rendition of judgment ; the amount of judgment, and a 
column for remarks ; the amount paid before sale and after the 
rendition of said judgment, the amount of the sale, amount of in- 
terest or penalty, amount of cost, amount forfeited to the state, 
date of sale, acres or part sold, name of purchaser, amount of sale 
and penalt}^, taxes of succeeding years, interest and when paid, 
interest and cost, total amount of redemption, date of redemption, 
when deed executed by whom redeemed, and a column for remarks, 
or receipt, of redemption money. [As amended, 1879. 

189. Tax may be paid before sale.] § 189. Any person owning 
or claiming lands or lots upon which judgment is prayed, as pro- 
vided in this act, may, in person or by agent pay the taxes, special 
assessments, interest and costs due thereon, to the county collector 
of the county, in Avhich the same are situated, at any time before 
sale. [As amended, 1879. 

190. Payments reported— List corrected.] § 190. On the first 
day of the term at which judgment on delinquent lands and lots is 
prayed, it shall be the duty of the collector to report to the clerk 
all the lands, or lots as the case may be, upon which taxes and 
special assessments have been paid, if any, from the filing of the list 
mentioned in section one hundred and eighty-eight up to that time ; 
and the clerk shall note the fact opposite each tract upon which 
such payments have been made. The collector assisted by the clerk, 
shall compare and correct said list, and shall make and subscribe 
an affidavit, which shall be as nearly as may be, in the following form: 

I, , collector of the county of , do solemnly swear (or affirm, 

as the case may be,) that the foregoing is a true and correct list of the de- 

23 



35i EEVENUE. [DIY. VII. 



linquent lands and lots within the county of , upon which I have 

been unable to collect the taxes (and special assessments, interest, and 
printer's fees, if any,) charged thereon, as required by law, for the year or 
years therein set forth ; that said taxes now remain due and unpaid, as I 
verily believe. 

Said affidavit shall be entered at the end of the list, and signed 
by the collector.(l) [As amended, 1879. 

' JUDGMENT. 
Section. 

191. Proceedings by court. 

192. Appeals. 

193. Proceedings for sale in appeal cases. 

191. Proceedings by court.] § 191. The court shall examine 
said list, and if defense (specifying, in writing, the particular cause 
of objection) be offered by any person interested in any of said 
lands or lots, to the entry of judgment against the same, the court 
shall hear and determine the matter in a summary manner, with- 
out pleadings, and shall pronounce judgment as the right of the 
case may be. The court shall give judgment for such taxes and 
special assessments and penalties as shall appear to be due, and 
such judgment shall be considered as a several judgment against 
each tract or lot, or part of a tract or lot, for each kind of tax or 
special assessment included therein; and the court shall direct the 
clerk to make out and enter an order for the sale of such real 
property against which judgment is given, which shall be substan- 
tially in the following form :(2) 

(1) A collector's report of delinquent lands, which shows that he was collector 
of taxes for a certain year, and that he had not been able to collect the taxes due on the lands in 
the report mentioned, sufficiently shows for what year the taxes were levied. Karnes v. The 
People, 73 111. R., 274. 

The omission of a tract of land or lot from the collector's return of delinquent 
lands, will not defeat the whole tax. C. & N. W. R. R. Co. v. Tlie People, ex rel., Miller, 83 I1L 
R., 467. 

"Where a statute requires the tax list to be verified toy an oath " made and sub- 
scribed," this means an oath duly certified in writing, and the absence of it is fatal to the pro- 
ceedings. Yenda v, Wheeler, 9 Texas R., 408. 

A return or report by the collector of taxes before the sitting of the court to which it is by law 
directed to be made, will be good. Jackson v. Cummings, 15 111. R., 450. 

The provision requiring the affidavit of the collector to be entered at the bottom of the record, 
would probably be answered if entered in the record, although not exactly or technically at the 
bottom. Winder v. Sterling, 7 Ohio R., 2 post, 190. 

(2) A judgment for taxes, which tails to show the amount of taxes for which 
it is rendered, is fatally defective. The use of numerals, without some mark or word indicating 
for what they stand, is insufficient, and cannot be explained by referring to other judgments 
entered in a corresponding manner at different times. Lane v. Bommelmann, 21 111, R., 143; 
Elslon et al. v. Kennicott et al., 46 III. R., 189 ; Chickering et al. v. Failes et al., 38 III. R., 342. 

Where a precept and judgment is referred to, to sustain a tax sale, the amount should defi- 
nitely appear in the judgment. An error in the precept might be corrected ; but uncertainty as 
to judgment is fatal. If the judgment is for different taxes, there should be certainty as to 
each. Eppinger v. Kirby, et ux., 23 111. R, 521. 

A specific or general judgment for cost in a suit for taxes, as in ordinary cases, 
is good. Jackson v. Cummings, 15 111. R., 452 ; Merrill et al. v. Thompson, 13 111. R.. 727. 

Judgment can be rendered only for the amount specified in the collector's notice. The People 
ex rel. v. Nichols, 49 IU. R., 517. 



■DIY. VII.] JUDGMENT. 355 



Whereas, due notice has been given of the intended application for a 
judgment against said lands and lots, and no sufficient defense having 
been made,"or cause shown why judgment should not be entered against 
said lands, and lots, for taxes (special assessments, if any), interest, penal- 
ties and costs due and unpaid thereon for the year or years herein set forth, 
therefore it is considered by the court that judgment be and is hereby 
entered against the aforesaid tract or tracts, or lots of land, or parts of 
tracts or lots, (as the case may be,) in favor of the People of the State of 
Illinois, for the sum annexed to each, being the amount of taxes (and 
special assessments, if any), interest, penalties and costs due severally 
thereon ; and it is ordered by the court that the said several tracts or lots 
of land, or so much of each of them as shall be sufficient to satisfy the 
amount of taxes (and special assessments, if any), interest, penalties and 
costs annexed to them severally, be sold as the law directs. 

Said order shall be signed by the judge. In all judicial pro- 
ceedings of any kind, for the collection of taxes and special 
assessments, all amendments may be made which, by law, could 
be made in any personal action pending in such court, and no 
assessment of property or charge for any of said taxes shall be 
considered illegal on account of any irregularity in the tax list or 
assessment rolls, or on account of the assessment rolls or tax lists 

The want of the dollar mark in the assessment roll, to designate the amount of 
the valuation or the taxes, will not render the assessment or the collector's warrant invalid and 
illegal. Elston et al. v. Kennicott et al, 46 111. R., 189. 

A judgment cannot be rendered for taxes, a part of which are shown by the record to be il- 
legal. Campbell et al. v. Peoper, 41 111. R., 454. 

Where material omissions occurred in the record of a judgment, a correction at a 
subsequent term of the court was sustained. Atkins v. Kinman, 2 Gilm. It., 450. 

A judgment rendered on a day prior to that named in the collector's notice, or where the re- 
port of the collector does not comply with the law, is void. Pickett v. Hartsock, 15 111. R., 282. 

The county court has Jurisdiction to render judgment against delinquent lands, 
for taxes, at any regular term after April in each year. The statute has not limited the rendi- 
tion of judgment to the first Monday in May ; nor does it, in terms, require that it shall be at 
that or any particular term. Stilwell et al. v. People, 49 111. R., 45 ; Opinion Auditor Miner, Jan. 
20, 1867. 

Where application was made for judgment at the June term of the county 
court, and the court refused to enter judgment because the list had not been filed five days, and a 
new application was made to the next August term. Held, that the refusal at the June term, not 
having been on the merits, formed no bar to rendering a judgment on the second application. 
Stilwell et al. v. People, 49 111. R., 45. 

There may be considerable doubt whether the county clerk has any right to go behind the 
list compared and corrected by the collector and clerk, unless some person interested in the 
lands included therein, appears and objects to the entry of judgment. Unless such is the case, 
the court is not required to determine whether the antecedent proceedings are regular. Opin- 
ion Auditor Lippincott, Nov. 12, 1869. An appearance in such a case does not have the effect to 
waive a material defect in the proceedings. The People ex rel. v. Nichols, 49 111. R., 517. 

It -will be presumed that taxes are properly and legally assessed, and are le- 
gally and justly due, in the absence of proof to the contrary. The collector's list and report of 
delinquent lands in the manner prescribed by statute, entitle him to judgment, unless the tax 
payer satisfactorily shows that the taxes have been paid, or some other legal defense to the 
merits. Buck v. The People, 78 111. R., 560. 

In counties under township organization, the county collector, and not the 
sheriff, is the proper person to make' application for judgment against delinquent lands for 
t axes. Beers et al. v. The People ex rel., 83 111. R., 488. 

The courts are not inclined to entertain merely formal objections to taxes 
levied by municipalities, where the irregularities complained of do not affect unjustly the rights 
of the citizen. Purrington et al. v. The People, ex rel., 79 111. R., 11. Courts can only look to objec- 
tions which affect the substantial justice of the tax. Thatcher v. The People ex rel., 79 111. R., 579. 

Where a party appears before the county court and makes specific objections 
to a judgment for taxes against his land, but none on account of the levy not being properly 
made, he tacitly admits the legality of the levy, and can not be permitted to question it for the 
first time in the Supreme Court. Kamet v. The People, 73 111. R., 274. 



356 REVENUE. [DIY. Til- 

not having been made, completed or returned within the time 
required by law, or on account of the property having been 
charged or listed in the assessment or tax list without name, or in 
any other name than that of the rightful owner; and no error or 
informality in the proceedings of any of the officers connected 
with the assessment, levying or collecting of the taxes, not affect- 
ing the substantial justice of the tax itself, shall vitiate or in any 
manner affect the tax or the assessment thereof; and any irregular- 
ity or informality in the assessment roll or tax lists, or in any of the 
proceedings connected with the assessment or levy of such taxes, 
or any omission or defective act of any officer or officers connected 
with the assessment or levying of such taxes, may be in the discre- 
tion of the court, corrected, supplied and made to conform to law 
by the court, or by the person (in the presence of the court) from 
whose neglect or default the same was occasioned. [As amended by 
act approved May 3, 1873. See § 88, Const., art. 9, § 4. 

192. Appeals.] § 192. Appeals from the judgment of the 
cpurt may be taken during the same term to the supreme court on 
the party praying an appeal executing a bond to the people of the 
state of Illinois, with two or more sureties to be approved by the 
court, in some reasonable amount to be fixed by the court, con- 
ditioned that the appellant will prosecute his said appeal with 
effect, and will pay the amount of any tax assessment, and cost 
which may finally be adjudged against the real estate involved in 
the appeal by any court having jurisdiction of the cause. But no 
appeal shall be allowed from any judgment for the sale of 
lands or lots for taxes, nor shall any writ of error to reverse such 
judgment operate as a supersedeas, unless the party praying 
such appeal or desiring such a writ of error, shall before taking, 
such appeal or suing out such writ of error, deposit with the 
county collector an amount of money equal to the amount of the 
judgment and costs. If in case of an appeal, or suing out a writ 
of error, the judgment shall be affirmed in whole or in part, the 
supreme court shall enter judgment for the amount of the taxes with 
damages, not to exceed ten per cent., and order that the amount 
deposited with the collector aforesaid, or so much thereof as may 
be necessary, shall be credited upon the judgment so rendered, and 
execution shall issue for the balance of said judgment, damages 
and costs. The clerk of the supreme court shall transmit to said 
county collector, a certified copy of the order of affirmance, and it 
shall be the duty of the collector, upon receiving the same, to 
apply so much of the amount deposited with him, as aforesaid, as 
shall be necessary to satisfy the amount of the judgment of the 
supreme court, and to account for the same as collected taxes. If 
the judgment of the county court shall be reversed and the cause 
remanded for a rehearing, and if upon the rehearing, judgment 



DIV. VII.] SALE OF DELINQUENT LANDS. 357 

shall be rendered for the sale of lands or lots for the taxes, or any 
part thereof, and such judgment be not appealed from, or a writ of 
error prosecuted with supersedeas issued thereon, as herein provi- 
ded, the clerk of the county court shall certify to the county col- 
lector the amount of such judgment, and thereupon it shall be the 
duty of the county collector to certify to the county clerk the 
amount deposited with him, as aforesaid, and the county clerk 
shall credit the said judgment with the amount of such deposit, or 
so much thereof as will satisfy the judgment, and the county col- 
lector shall be chargable with, and accountable for, the amount so 
credited, as collected taxes. Nothing herein contained shall be 
construed as requiring an additional deposit in case of more than 
one appeal or writ of error being prosecuted in said proceedings. 
If, upon a final hearing, judgment shall be refused for the sale of 
lands or lots for the taxes, or any part thereof, the collector shall pay 
over to the party who shall have made said deposit, or his legally 
authorized agent or representatives, the amount of the deposit, or 
so much thereof as shall remain after the satisfaction of the judg- 
ment against the premises in respect of which such deposit shall 
have been made. [As amended, 1877. 

193. Proceedings in case of appeal.] § 193. If judgment is 
rendered by any court, at any time, against any lands or lots, for 
any tax or special assessment, the county collector shall, after 
publishing a notice for sale, in compliance with the requirements 
of section 182 of this chapter, proceed to execute such judgment 
by the sale of lots and lands against which such judgment has 
been rendered: Provided, however, that in case of an appeal from 
any such judgment the collector shall not sell until such appeal is 

■ disposed of. [As amended, 1879. 

SALE OP DELINQUENT LANDS. 
Section. 

194. Process of sale. 

195. Payments noted on list. 

196. County clerk to assist in sale. 

197. Entry of sale— Redemption. 

198. County to furnish book. 

199. Forfeited tracts noted. 

200. " Sale and redemption record." 

201. Manner of conducting sale. 

202. How sold. 

203. Forfeited to state. 

204. Failure of collector to attend — Liability — Subsequent sale. 

205. Failure of county clerk to attend. 

206. Payment by purchaser. 

207. Certificate of purchase — Assignable. 

208. Index to tax sale books. 

194. Process for sale.] § 194. On the day advertised for sale, 
the county clerk, assisted by the collector shall carefully examine 



358 BEVENUE. [DIV. VIL 

said list upon which judgment has been rendered, and see that all 
payments have been properly noted thereon, and said clerk shall 
make a certificate to be entered on said record, following the order 
of court that such record is correct, and that judgment was ren- 
dered upon the property therein mentioned for the taxes, interest 
and costs due thereon, which certificate shall be attested by the 
clerk under seal of the court and shall be the process on which all 
real property or any interest therein shall be sold for taxes, special 
assessments interest and costs due thereon and may be substan- 
tially in the following form.(l) 

I, , clerk of the county court, in and for the county of , do 

hereby certify that the foregoing is a true and correct record of the delin- 
quent real estate in said couuty, against which judgment and order of sale 

was duly entered in the county court of said county, on the day of 

, 18 — , for the amount of the taxes, special assessments, interest and 

costs clue severally thereon as therein set forth, and that the judgment and 
order of court in relation thereto fully appears on said record. 

[As amended, 1879. 

195. Payments noted on list.] § 195. On the day advertised: 
for sale, the collector shall report to the county clerk a list of all 
lands and lots upon which taxes and special assessments have been 
paid after the rendition of judgment ; and said clerk shall note the 
fact of such payment opposite such tracts or lots upon the record 
aforesaid. [Repealed by act approved May 29, 1879. 

196. County clerk to assist in sale.] § 196. The county clerk, . 
in person or by deputy, shall attend all sales of real estate for 
taxes, made by the collector, and shall assist at the same. [See 
§205. 

197. Entry of sale— Eedemption.] § 197. When any tract or 
lot shall be sold, it shall be the duty of the clerk to enter on the 
record aforesaid, the quantity sold and the name of the purchaser, 
opposite such tract or lot, in the blank columns provided for that 
purpose; and when any such property shall be redeemed from 
sale, the clerk shall enter the name of the person redeeming, the 
date, and amount of redemption, in the proper column. [See § 
210-213. 



(1) Under the constitution, sale of lands for non-payment of taxes, or special 
assessments for State, county, municipal or other purposes, is to be made by the general officer 
of the county having authority to receive State and county taxes. Hills v. City of Chicago, 60 111. 
R., 86 ; Otes v. City of Chicago, 62 111. R., 299 ; Webster v. City of Chicago, 62 111. R., 302. 

The precept or certified copy of judgment on which sale is made for non-payment 
of taxes, is not process in the strict sense of the word, and need not run in the name of the peo- 
ple. Curry v. Hinman, 11 111. R., 424 ; Scarritt v. Chapman, 11 111. R., 444. 

The notice of application for judgment and sale stands as process, and must be regular in all i 
respects. Scammon v. City of Chicago, 40 111. R., 146. 

"Where the report of the collector simply shows the total amount of taxes due, 
without specifying whether the delinquent tax was due to the State or county, such error is 
fatal, and the purchaser at the tax sale can acquire no title. Fox v. Turtle, 55 111. R., 377. 



DIV. VII.] SALE OF DELINQUENT LANDS. 359 

198. County to furnish book.] § 193. The book for such 
record shall be furnished at the expense of the county, and be so 
ruled that there shall be suitable blank columns for entering the 
quantity or portion of each tract or lot that may be sold, the name 
of the purchaser, and such other columns as may be deemed 
necessary . [Repealed by act approved May 29, 1879. 

199. Forfeited tracts noted.] § 199, All tracts or lots forfeited 
to the state at such sale, as hereinafter provided, shall be noted on 
said record. 

200. Sale and redemption record.] § 200. Said book shall be 
known and designated as the tax judgment sale, redemption and for- 
feiture record, and be kept in the office of the county clerk. [As 
amended, 1879. 

201. Manner of conducting sale.] § 201. The collector, in per- 
son, or by deputy, shall attend at the court house in his county, 
on the day specified in the notice for the sale of real estate for 
taxes, and then and there, between the hours of ten o'clock in the 
forenoon and four o'clock in the afternoon, proceed to offer for 
sale, separately, and in consecutive order, each tract of land or 
town or city lot in the said list on which the taxes, special assess- 
ments, interest or costs have not been paid. The sale shall be con- 
tinued from day to day, until all the tracts or lots in the delinquent 
list shall be sold or offered for sale. (1) [See § 204. 

(1) It is the duty of the collector at tax sale to offer the tracts and lots separately, 
and to collect the taxes at the least possible loss to the owner. To allow a person to select from 
the list a portion of the delinquent lands, and become the purchaser of the whole for the tax 
due, without competition, is fraudulent. Brown et al. v. Rogle et al, 30 111. R. r 120. 

In. the sale of lands for taxes, the law must he strictly ptirsued in all its ma- 
terial requirements, or the sale will be invalid. Lane v. Bommelmann, 21 111. R., 143 ; HoWrook v. 
Dickinson, 46 Id., 285. 

Where the law authorizing a tax is unconstitutional, a tax sale under it is void, 
and the case will be treated as if no assessment had ever been made. Holbrook v. Dickinson, 46 
ni.R., 285; Springer v. Rossetter et al, 47 Id., 223, 

A valid tax sale, after a deed is acquired, passes a new and perfect title to the pur- 
chaser. It is superior in its nature to title under an ordinary sheriff's deed. Atkins v. Hinman, 
2 Gilm. R., 449. 

It is fraud for a tenant in common to permit lands held in common to be sold for taxes, and 
become himself the purchaser. Brown et al. v. Hogle et al., 30 111, R., 119. 

When a tax sale is not legally conducted, it works no forfeiture to the owner, and 
no rights are acquired. Conway v. Cable et al., 37 111. R., 82. 

The omission of essential acts in conducting a tax sale cannot be cured by legis- 
lative enactments so as to render the sale valid. And where the officers conducting the sale 
agree with the purchaser to receive a part only of the amount of taxes due, the agreement is 
illegal. Conway v. Cable et al., 37 111. R„ 82. 

Lands must he sold as listed. If a block of town lots are listed as one block, they must 
be sold in a body and redeemed in a body ; but in case of a large number of town lots, held for 
purposes of speculation, the owner may not be able to redeem all, or for special reasons may de- 
sire to redeem a part. In summary proceedings this right is preserved to the owner. Opinion 
Att'y Gen. Cole, (Minn.) vol. 1, p. 400. 

A purchaser at a sale, having an interest in the land as heir, acquires no addi- 
tional title ; nor does a person claiming title to land which is listed in his name, acquire any 
5reater interest by permitting it to be sold for taxes and becoming the purchaser. Choteau v. 
ones et al., 11 111. R., 322. Nor can a mortgagor, by such an act, defeat the lien of the mortgage. 
The purchase by him at tax sale will be regarded as payment of taxes. Frye v. Bank of Illinois, 
H 111. R., 383 ; Moore v. Titman, 44 Id., 367. 



360 REVENUE. [DIY. VII. 

202. How sold.] § 202. The person at such sale offering to 
pay the amount due on each tract or lot, for the least quantity 
thereof, shall be the purchaser of such quantity, which shall be 
taken from the east side of such tract or lot. 

203. Forfeited to state.] § 203. Every tract or lot so offered 
at public sale, and not sold for want of bidders, shall be forfeited 
to the state of Illinois. [See § 226-230. 

204:. Failure of collector to attend.] § 204. If any collector, 
by himself or deputy, shall fail to attend any sale of lands or lots 
advertised according to the provisions of this act, and make sale 
thereof as required by law, he shall be liable to pay the amount 
of taxes, special assessments and costs due upon the lands or lots 
so advertised. Said collector may afterwards advertise and sell 
such delinquent property to reimburse himself for the amount ad- 
vanced by him ; but at no such sale shall there be any property 
forfeited to the state. [See § 201. 

205. Failure of county clerk to attend.] § 205. If any county 
clerk shall fail to attend any tax sale of real estate, either in 
person or by deputy, or to make and keep the record, as required 
by this act, he shall forfeit and pay the sum of $500, and shall 
be liable to indictment for such failure, and upon conviction 
shall be removed from office. Said sum shall be sued for in an 
action of debt, in the name of the People of the State of Illinois, 
and when recovered shall be paid into the county treasury. 
[See §196. . 

206. Payment by purchaser.] § 206. The person purchasing 
any tract or lot, or any part thereof, shall forthwith pay to the 
collector the amount charged on such tract or lot, and on failure 
so to do, the said tract or lot shall be again offered for sale in 
the same manner as if no such sale had been made ; and in no 
case shall the sale be closed until payment is made, or the tract 
or lot again offered for sale. 

207. Certificate of purchase— Assignable.] § 207. The county 
clerk, on being requested so to do, shall make out and deliver to 
the purchaser of any lands or lots sold as aforesaid, a certificate 
of purchase, to be countersigned by the collector, describing the 
land or lot sold as the same was described in the delinquent list, 

An agent for the payment of taxes on lands, who allows them to be sold, and be- 
comes the purchaser, will hold the lands as trustee for his principal. Barton et al. v. Moss, 32 111. 
K., 50. 

A person having an agreement for a conveyance of lands, in which he is 

obliged to pay the taxes, acquires no title by allowing them to be sold and becoming the pur- 
chaser. The act will be regarded as mere payment of taxes. Oliver et al. v. Croswell, 42 111. 
R., 42. 

The purchaser at a sale of a portion of a lot is entitled to have such fraction listed 
and assessed separately, so that he may pay the taxes thereon. Eoby v. City of Chicago, 48 111. 
R., 130. 

* Amended, 1881. See Appendix, p.,486. 



DIV. VII.] CERTIFIED COPY OF SALE LISTS — REDEMPTION. 361 

date of such, sale, the amount of taxes, special assessments, in- 
terest and costs for which the same was sold, and that payment 
has been made therefor. If any person shall become the pur- 
chaser of more than one tract or lot, he may have the whole or 
one or more of them included in one certificate. Such certifi- 
cate of purchase shall be assignable by indorsement, and an 
assignment thereof shall vest in the assignee, or his legal rep- 
resentatives, all the right and title of the original purchaser. 
[See § 225. 

208. Index to tax sale books.] § 208. The county clerk is 
hereby authorized to make an index to tax sale records in a 
book, when furnished by the county — which index shall be kept 
in the county clerk's office as a public record, open to the in- 
spection of all persons during office hours. 

CERTIFIED COPY OF SALE LISTS TO BE SENT TO AUDITOR. 
Section. 
• 209. In twenty days after sale. 

209. In twenty days after sale.] § 209. The county clerk shall, 
within twenty days after any sale for taxes, make out and trans- 
mit to the auditor a transcript of sales for taxes, which shall be 
written on foolscap paper, made up and stitched in book form, 
suitable for binding. The clerk shall certify to the correctness 
of said transcript, under the seal of his office. Said list shall 
not include any tracts or lots forfeited to the state at such sale. 
The county clerk, for failure to make out, furnish or forward said 
list, as herein required, shall forfeit and pay into the state treas- 
ury the sum of $500, to be recovered in an action of debt, in the 
name of the People of the State of Illinois, in any court in this 
.state having competent jurisdiction. 

REDEMPTION. 
Section. 

210. Time of redemption— Amount— Minor heirs, etc. — Tenants, etc. 

211. When purchaser suffers land to be sold again. 

212. Books and records evidence — Clerk to pay over redemption, etc. 
.213. Sales in error— Entry by county clerk. 

214. Purchase money at erroneous sale paid back. 

215. Effect of receipt of redemption money. 

210. Time of redemption— Amount.] § 210. Keal property 
sold under the provisions of this act may be redeemed at any 
time before the expiration of two years from the date of sale, by 
payment in legal money of the United States, to the county 
clerk of the proper county, the amount for which the same was 
sold, and twenty-five per cent, thereon if redeemed at any time 



362 EEVENUE. [DIY. YIL- 

before tlie expiration of six months from the day of sale ; if be- 
tween six and twelve months, fifty per cent. ; if between twelve 
and eighteen months, seventy-five per cent. ; and if between 
eighteen months and two years, one hundred per cent, on the 
amount for which the same was sold. The person redeeming 
shall also pay the amount of all taxes and special assessments^ 
accruing after such sale, with ten per cent, interest thereon, from 
the day of payment, unless such subsequent tax. or special assess- 
ment has been paid by or on behalf of the person for whose ben- 
efit the redemption is made, and not by the purchaser at the tax 
sale, or his assignee.(l) 

By minor heirs, etc.] If the real property of any minor heir,, 
idiot or insane person be sold for non-payment of taxes or special 
assessments, the same may be redeemed at any time after sale 
and before the expiration of one year after such disability be re- 
moved, upon the terms specified in this section, and the payment 
of ten per cent, per annum, on double the amount for which the 
same was sold, from and after the expiration of two years from 
the date of sale — which redemption may be made by themselves, 
or by any person in their behalf. 

By tenants in common, etc.] Tenants in common or joint ten- 
ants shall be allowed to redeem their individual interest in real 
property sold under the provisions of this act, in the same manner 
and under the terms specified in this section for the redemption 
of other real property. 

Redemption inures to benefit of owner.] Any redemption made 
shall inure to the benefit of the person having the legal or equita- 
ble title to the property redeemed, subject to the right of the 



(1) On paying redemption money it is deemed absolutely necessary for the cler& 
to require the surrender of the certificate as a condition precedent to paying over the money. 
Or, in lieu of the certificate, satisfactory proof by affidavit of the loss or destruction thereof, with- 
out transfer or assignme t. Opinion Auditor Miner, May 29, 1868. 

"When, under claim and color of title all the taxes legally assessed are paid for 
the full period of limitation, a bar is created to the redemption of any portion of the property. 
Chickering et al. v. Failes ex rel„ el al.. 38 111. R., 342. 

The provisions of the limitation act of 1839 empowering minors to redeem land sold for taxes, 
within three years after attaining their majority, by paying to the person who has paid the tax, 
the amount with interest, do not take from them the right to redeem within one year after hi* 
majority, by paying double the amount, etc., to the collector. Holloway et al. v. Clark, 27 111. 
R.,488. 

In the redemption of land Belonging to infants, if the clerk has failed to file the 
affidavit by which the right to redeem was established, the right to redeem may be shown if the- 
validity of the redemption is questioned. Chapin v. Cortenius et al., 15 111. R., 432. 

Under the revenue law of 184:5 lands sold for taxes were redeemable, within two 
years by the payment of double the amount for which they were sold, all taxes accruing after 
such sale, with six per cent, interest on such paid taxes, if any were paid, from the first day of 
May in each year up to the time of payment. The act of 1853, amendatory thereof, changed the 
rate of interest from six to ten per cent., but fixed no certain day from which it should be com- 

Suted, except that it should be from the day of sale, whenever that may be. The " day of sale " 
ere alluded to is the day on which a sale might take place in each year, if the subseqnent taxes 
were not paid, and not the day of the first sale under which the tax purchaser claims. If the 
purchaser pays no subsequent taxes he can claim no interest. Comstock v. Cover, 35 111. R., 470 a <. 



div. til] kedemptton. 363" 

person making the same to be re-imbursed by the person benefited. 
[See § 197. Const., art. 9, § 5. 

211. When purchaser suffers laud to be sold again.] § 211. 

If any purchaser of real estate sold for taxes or special assess- 
ment shall suffer the same to be forfeited to the state, or again 
sold for taxes or special assessment, before the expiration of the 
last day of the second annual sale thereafter, such purchaser 
shall not be entitled to a deed for such real property until the 
expiration of a like term from the date of the second sale or for- 
feiture, during which time the land shall be subject to redemp- 
tion, upon the terms and conditions prescribed in this act ; but 
the person redeeming shall only be required to pay, for the use 
of such first purchaser, the amount paid by him. The second 
purchaser, if any, shall be entitled to the redemption money, a& 
provided for in the preceding section: Provided, however, it shall 
not be necessary for any municipal corporation which shall bid 
in its own delinquent special assessments, at any sale, in default 
of other bidders, to protect the property from subsequent forfeit- 
ures or sales, as above required in this section. [As amended, 1879. 

212. Books, etc., evidence.] § 212. The books and records be- 
longing to the office of county clerk, or copies thereof, certified 
by said clerk, shall be deemed prima facie evidence to prove the 
sale of any land or lot for taxes or special assessments, the re- 
demption of the same, or payment of taxes or special assessments 
thereon. 

Clerk to pay over money to successor.] The county clerk shall, 
at expiration of his term of office, pay over to his successor in 
office all moneys in his hands received for redemption from sale 
for taxes on real estate. [As amended by act approved May 3, 1873. 

213. Sales in error— Entry. ] § 213. Whenever it shall be made 
to appear, to the satisfaction of the county clerk, that any tract 
or lot was sold which was not subject to be taxed, or upon which 
taxes or special assessments had been paid previous to the sale, 
ne shall make an entry opposite to such tracts or lots in the sale 
and redemption record that the same was erroneously sold, and 
such entry shall be prima facie evidence of the fact therein stated. 
[See § 197, 268. 

214. Purchaser at erroneous sale paid back.] § 214. When 
the purchaser at such erroneous sale, or any one holding under 
him, shall have paid any tax or special assessment upon the 
property so sold, which has not been paid by the owner of the 
property, he shall have the right to recover from such owner the 
amount he has so paid, with ten per cent, interest, as money paid 
for the owner's use. 



364 REVENUE. [DIV. YII. 

215. Effect of receipt of redemption money.] § 215. The re- 
ceipt of the redemption money of any tract of land or lot, by any 
purchaser, or the return of the certificate of purchase for can- 
cellation, shall operate as a release of all the claim to such tract 
or lot, under or by virtue of the purchase. 

TAX DEEDS. 

Section. 

216. Notice. 

217. Affidavit— Evidence— Perjury. 

218. Printers' fee. 

219. When entitled to deed. 

220. Deed may include several tracts — Fee. 

221. Form of deed. 

222. Evidence recorded. 

223. Applies to former sales. 

224. Effect of deed as evidence. 

225. When deed must be taken out. 

216. Notice.] § 216. Hereafter no purchaser or assignee of 
such purchaser, of any land, town or city lot, at any sale of lands, 
or lots, for taxes or special assessments, due either to the state or 
county, or incorporated town or city within the same, or at any 
sale ior taxes or levies otherwise, by the laws of this state, shall 
be entitled to a deed for lands or lots so purchased, until the fol- 
lowing conditions have been complied with, to-wit : Such pur- 
chaser or assignee shall serve, or cause to be served, a written or 
printed, or partly written or partly printed notice of such pur- 
chase, on every person in actual possession or occupancy of such 
land or lot ; also, the person in whose name the same was taxed 
or specially assessed, if upon diligent inquiry, he or she can be 
found in the county, also, the owners of or parties interested 
in said land or lot, if they can, upon diligent inquiry, be 
found in the county, at least three months before expira- 
tion of the time of redemption on such sale ; in which notice 
he shall state when he purchased the land or lot, in whose name 
taxed, the description of the land or lot he has purchased ; for 
what year taxed or specially assessed ; and when the time of re- 
demption will expire ; if no person is in possession or occupancy 
of such land or lot and the person, in whose name the same was 
taxed or specially assessed, upon diligent inquiry, cannot be found 
in the county, or the owners of, or parties interested in said land 
or lot, upon diligent inquiry, cannot be found in the county, then 
such person, or his assignee, shall publish such notice in some 
newspaper printed in such county, and if no newspaper is printed 
in said county, then in the newspaper that is published in this 
state nearest to the county seat of the county in which such land 
or lot is situated, which notice shall be inserted three times, the 



DIV. ¥11. ] - TAX DEEDS. 365 

first time not more than five months, and the last time not less 
than three months, before the time of redemption shall expire: 
Provided, however, that if the owners of said land or lot, or the 
parties interested therein, cannot be found in the county, and the 
person in the actual occupancy is tenant to, or is in possession 
under the owner or party interested therein, then service of said 
notice upon such tenant or occupant, shall be deemed service 
upon the owner or party interested : And, provided, further, that 
if the owners or parties interested are unknown to such purchaser 
or his assignee, then the said publication, as to them, may be to 
the unknown owner or parties interested. (1) [As amended, 1879. 

217. Affidavit— Evidence— Perjury.] § 217. Every such pur- 
chaser or assignee, by himself or agent, shall, before he shall be 
entitled to a deed, make an affidavit of his having complied with 
the conditions of the foregoing section, stating particularly the 
facts relied on as such compliance — which affidavit shall be deliv- 
ered to the person authorized by law to execute such tax deed, 
and which shall by him be filed with the officer having custody of 
the record of the lands and lots sold for taxes and entries of re- 
demption, in the county where such lands or lots shall lie, to be by 
such officer entered on the records of his office, and carefully pre- 
served among the files of his office, and which record or affidavit 
shall be prima facie evidence that such notice has been given. 
Any person swearing falsely in such affidavit shall be deemed guilty 
of perjury, and punished accordingly. 

218. Printer's fee.J §218. In case any person shall be com- 
pelled to publish such notice in a newspaper, then, before any 

(1) A published notice cannot Ibe received, as the substitute for the notice to be 

personally delivered to the party concerned. Cooley on Taxation, p. 218 And where a notice 
is to be given personally and also by publication a failure in either is a failure. Appeal Powers* 
29 Mich. R., 504. 

A purchaser of land at tax sale is not entitled to a deed until the lapse of two years; 
a deed given before that time is not notice to the grantee of the purchaser, of the illegality. A 
tax deed may be good as color of title, although not so as permanent title. Soman v. Wetting* 
39 111. R., 418. 

A tax title is purely technical, as contra distinguished from a meritorious title, and 
depends for its validity upon a strict compliance with the statute ; and any omission, as the seal 
of the officer making it, will not be corrected by a court of chancery. Altes v. Hincklee et al., 36 
111. R., 265. 

A tax deed is sufficient to show claim and color of title, if it appears on its face 
to be regular. The person relying upon it for that purpose is not bound to show that the pre- 
requisites of the statute have been complied with. Holloway et al. v. Clark, 27 111. R., 486. 

If an officer executes a deed for land under a sale for taxes, without notice hav- 
ing been given to the person in whose name the land was taxed, by personal service thereoi if 
he resides in the county, or, if not, then by publication, informing him of the time of the sale, 
and when the time for redemption will expire, such deed will be inoperative to convey a title. 
And proof that such notice has been given is essential to the admissibility of a tax deed in evi- 
dence. Holbrook v. Fellows, 38 111. R., 440. 

In an action of ejectment, where the plaintiff relied on a tax deed^ the de- 
fendant sought to prove that the taxes, for the alleged non-payment ot which the land had 
been sold, had been paid before the sale, and offered a receipt for such taxes from the collector 
for "teety-seven dollars." The receipt also contained a column headed '• total tax," which 
footed up, in figures, $27. This was sufficient as explaining what "teety-seven dollars" meant. 
Daniels v. Burso, 40 111. R., 307. 



'366 REVENUE. [DIV. VII. 

person who may have a right to redeem such lands or lots from 
such sale shall be permitted to redeem, he shall pay the officer or 
person who by law is authorized to receive such redemption 
money, the amount paid for printer's fee for publishing such 
notice, for the use of the person compelled to publish such notice 
as aforesaid ; the fee for such publication shall not exceed $1 for 
each tract or lot contained in such notice. 

219. When entitled to deed.] § 219. At any time after the 
expiration of two years from date of sale of any real estate 
for taxes or special assessments, if the same shall not have been 
redeemed, the county clerk, on request, and on the production of 
the certificate of purchase, and upon compliance with the three 
preceding sections, shall execute and deliver to the purchaser, 
his heirs or assigns, a deed of conveyance for the real estate 
described in such certificate. 

220. Deed may include several tracts— Fee.] § 220. When 
any person shall hold more than one certificate of purchase at the 
same sale, and for the same year's tax or special assessment, the 
clerk shall, on the request of the holder of such certificates, include 
as many tracts or lots described therein in the deed of conveyance 
as such person may desire, and for which deed the county clerk 
shall have a fee of fifty cents for each certificate embraced therein : 
Provided, that no greater fee than $3 shall be charged upon, any 
one deed. [As amended by act approved May 3, 1873. 

221. Form of tax deed.] § 221. The deed so made by the 
county clerk under the official seal of his office shall be re- 
corded in the same manner as other conveyances of real estate, 
and shall vest in the grantee, his heirs and assigns, the title 
of the property therein described without further acknow- 



Where tlie defendant in ejectment, in resisting a tax title, repels the presump- 
tion by proof that the land in controversy has been duly listed, the plaintiff will be required to 
prove, affirmatively, that there was a proper lifting. Schuyler et. al. v Hall, 11 111. R., 465; Tib- 
bets v. Job et al, 11 111. R., 460. 

A party seeking to substantiate a tax title, must exhibit: first, a valid judgment 
against the land ; second, a valid precept authorizing the officer to make the sale; and. third, a 
proper conveyance of the land from the proper officer. These are essential to the validity of 
the title, and none oi them can be dispensed with. Atkins v. Hinman, 2 Gilm. R., 448. 

The construction of a tax deed in respect to the description of the land con- 
veyed, must be the same as if such description were used in a deed between private individu- 
als. The doctrine of strict construction, as applied to the execution of naked statutory powers, 
has no application in such cases. Blakeley v. Bestor, 13 111. R., 715. 

Courts of chancery will not talce jurisdiction to try the validity of tax titles, on 
the ground that they are a cloud. Springer v. Rosette et al., 47 111. K. 223. 

A deed of land sold for taxes under the revenue law of 1839, made either by the officer mak- 
ing the sale or his successor in office, is valid. Bestor v. Powell et al., 2 Gilm. R., 727. 

An auditor's deed to land, made in pursuance of a sale for taxes, under the law of 1827, will 
not show a complete title in a party, without proof that the pre-requisites of the law have been 
complied with. Irving v. Brownell, 11 111. R., 411. It has been held that if any portion of a tax 
upon which a judgment was rendered, was illegal, or if the judgment was for too large a sum, 
even to the extent of a few cents, a sale and tax deed based upon such judgment, would be 
void. McLaughlin v. Thompson, 55 111. R., 249. 



DIY. VII.] TAX DEEDS. 367 

ledgement or evidence of such conveyance, and said conveyance 
shall be substantially in the following form: 

State of Illinois, \ 

County, j 

Whereas, at a public sale of real estate for the non-payment of taxes, 

made in the couuty aforesaid, on the day of , A. D. 18 — , the 

following described real estate was sold, to-wit: (here place description of 
real estate conveyed), and whereas, the same not having been redeemed 
from said sale, and it appearing that the holder of the certificate of pur- 
chase of said real estate has complied with the laws of the state of Illinois 
necessary to entitle (insert him, her them) to a deed of said real estate: 

Now, therefore, know ye, that I, , county clerk of said county of 

, in consideration of the premises and by virtue of the statutes of 

the state of Illinois in such cases provided, do hereby grant and convey 

unto , his heirs and assigns forever, the said real estate hereinbefore 

described, subject, however, to any redemption provided by law. 

Given under my hand and seal of our court this day of , A. 

D. 18—. 

, County Clerk. 

[As amended by act approved May 3, 1873. See § 225, 

222. Evidence recorded.] § 222. County clerks shall record 
the evidence upon which deeds are issued, and be entitled to the 
same fee therefor that may be allowed by law for recording deeds. 

223. Applies to former sales.] § 223. The foregoing six sec- 
tions shall apply to all sales of real estate for taxes heretofore 
made, as well as to such sales for taxes and special assessments 
hereafter to be made. 

224. Effect of deed as evidence.] § 224. Deeds executedlby the 
county clerk, as aforesaid, shall be prima facie evidence, in all con- 
troversies and suits in relation to the right of the purchaser, his 
heirs or assigns, to the real estate thereby conveyed of the follow- 
ing facts : First, That the real estate conveyed was subject to tax- 
ation at the time the same was assessed, and had been listed and 
assessed in the time and manner required by law. Second, That 
the taxes or special assessments were not paid at any time before 
~the sale. Third, That the real estate conveyed had not been re- 
deemed from the sale at the date of the deed. Fourth, That the 
real estate was advertised for sale in the manner and for the length 
of time required by law. Fifth, That the real estate was sold for 
taxes or special assessments, as stated in the deed. Sixth, That 
the grantee in the deed was the purchaser or assignee of the pur- 
chaser. Seventh, That the sale was conducted in the manner re- 
quired by law. And any judgment for the sale of real estate for 
delinquent taxes rendered after the passage of this act ex- 
cept as otherwise provided in this section, shall estop all 
parties from raising any objections thereto or to a tax title based 
thereon, which existed at or before the rendition of such judgment, 
jand could have been presented as a defense to the application for 



368 revenue, [diy. viu 

such judgment in the court wherein the same was rendered, and 
as to all such questions the judgment itself shall be conclusive evi- 
dence, of its regularity and validity in all collateral proceedings, 
except in cases where the tax or special assessments have been 
paid or the real estate was not liable to the tax or assessment. [As 
amended, 1879. 

225. When deed must be taken out.] § 225. Unless the holder 
of the certificate for real estate purchased at any tax sale under 
this act, takes out the deed as entitled by law, and files the same 
for record within one year from and after the time for redemption 
expires, the said certificate or deed, and the sale on which it is 
based, shall, from and after the expiration of such one year, be ab- 
solutely null. If the holder of such certificate shall be prevented 
from obtaining such deed by injunction or order of any court, or 
by the refusal of the clerk to execute the same, the time he is so 
prevented shall be excluded from the computation of such time. 
Certificates of purchase and deeds executed by the county clerk 
shall recite the qualifications required in this section. [See § 207» 

FORFEITED PROPERTY. 
Section. 

226. County clerk to keep record of. 

227. Redemption or purchase of forfeited property. 

228. Report and payment of money collected on forfeited land. 

229. Back tax added— Effect. 

230. Suit by county for tax on forfeited property. 

226. County clerk to keep record of.] § 226. Each county clerk 
shall procure, at the expense of the county, a suitable record book, 
in which they shall keep a record of the real property forfeited to 
the state under the provisions of this act. Such book shall be 
properly ruled and headed, and proper columns provided for the 
several taxes and charges, redemptions and sales thereof. [Be- 
pealed by act approved May 29, 1879. 

227. Redemption or purchase of forfeited property.] § 227. If 

any person shall desire to redeem or purchase any tract of land or 
lot forfeited to the state, he shall apply to the county clerk, who 
shall issue his order to the county collector, directing him to re- 
ceive from said person the amount due on said tract or lot, which 
shall in no case be less than ten per cent, on all taxes heretofore 
forfeited, and twenty-five per cent, on all taxes hereafter levied and 
forfeited, in addition to the tax, special assessments, interest and 
printers fees due thereon, particularly describing the property and 
setting forth the amount due ; and upon presentation of said order 
to the county collector, he shall receive said amount and give the 
person duplicate receipts therefor, setting forth a description of 
the property and the amount received — one of which shall be 



DIY. VII.] FORFEITED PROPERTY. 369 

countersigned by the county clerk, and when so countersigned, 
shall be evidence of the redemption or sale of the property therein 
described, as the case may be, but no such receipt shall be valid 
until it is countersigned by the county clerk. The other receipt 
shall be filed by the county clerk in his office, and said clerk shall 
make a proper entry of the redemption or sale of the property on 
the books in his office, and charge the amount of the redemption 
or sale money to the county collector. In cases of sales, the col- 
lector and clerk shall make the receipt in the form of a certificate 
of purchase. Property purchased under this section shall be sub- 
ject to redemption, notice, etc., the same as if sold at regular pub- 
lic tax sale. (See § 225.) [As amended, 1879. 

228. Report and payment of money collected on forfeited 
land.] § 228. It shall be the duty of the county clerk, annually, 
when he makes return of the amount of taxes levied, to report 
to the auditor the amount due the state on account of the re- 
demption and sales of such forfeited property, and said auditor 
shall charge the same to the collector. If the collector who 
received said redemption or sale money shall be succeeded in 
office, he shall pay the amount in his hands over to his successor, 
who shall pay said amount into the state treasury when he set- 
tles for the taxes of the current year. 

229. Back tax added— Effect] § 229. The amount due on 
lands and lots previously forfeited to the state, and remaining 
unpaid on the first day of November, shall be added to the tax 
of the current year, and the amount thereof shall be reported 
against the county collector with the amount of the taxes for 
said year ; and the amount so charged shall be placed on the tax 
books, collected and paid over in like manner as other taxes. 
The county collector is hereby authorized to advertise and sell 
said property in the manner hereinbefore required by this act, 
as if said property had never been forfeited to the state. Said 
additions and sales shall be continued from year to year until 
the taxes on said property are paid, by sale or otherwise. [See 
§ 129.* 

230. Suit for tax on forfeited property.] § 230. The county 
board may at any time institute suit, in an action of debt in the 
name of the People of the State of Illinois, in any court of com- 
petent jurisdiction for the whole amount due on forfeited prop- 
erty ; or any county, city, town, school district, or other munici- 
pal corporation, to which any such tax may be due, may at any 
time institute suit in an action of debt, in its own name, before 
any court of competent jurisdiction, for the amount of such tax 
due any such corporation on forfeited property, and prosecute 
the same to final judgment ; and on the sale of any property fol- 

OA • Amended, 1881. See Appendix, p. 487. 



370 kevenue. * [diy. vn. 

~* — — . — 

lowing such judgment, on execution or otherwise, any such 
county, city, town, school district or other municipal corporation 
interested in the collection of said tax may become the pur- 
chaser at such sale of either real or personal property, and if 
the property so sold is not redeemed (in the case of real estate) 
may acquire, hold, sell and dispose of the title thereto, the same 
as individuals may do, under the laws of this state ; and in any 
such suit or trial for forfeited taxes, the fact that real estate is 
assessed to a person, firm or incorporation, shall be prima facie 
evidence that such person, firm or incorporation was the owner 
thereof, and liable for the taxes for the year or years for which 
the assessment was made ; and such fact may be proved by the 
introduction in evidence of the proper assessment book or roll, 
or other competent proof. (1) [As amended, 1879.* 

FINAL SETTLEMENT OF COUNTY COLLECTOR. 

Section. 

231. Statement to county clerk. 

232. Credit on forfeited property — Printers' fee. 

233. Settlement with county board. 

234. When collector to account with clerk. 

235. Clerk to certify to auditor. 

236. Clerk to certify to local authorities. 

237. Credits on final settlement — Examination of accounts, etc. 

238. Final order— Corrections, etc. 

231. Statement to county clerk.] § 231. On or before the 
third Monday in June, annually, the county collector shall make 
out and file with the county clerk a statement in writing, setting 
forth, in detail, the name of each person charged with personal 
property tax which he has been unable to collect, by reason of 
the removal or insolvency of the person charged with such tax, 
the value of the property, and the amount of tax, the cause of 
inability to collect such tax, in each separate case, in a column 
provided in the list for that purpose. Said collector shall, at the 
same time, make out and file with the county clerk a similar 
detailed list of errors in assessment of real estate and errors 
in footing of tax books, giving in each case a description 
of the property, the valuation and amount of several taxes 
and special assessments, and cause of error. The truth of 
the statements contained in such lists shall be verified by 
affidavit of the county collector. County collectors, in cases 
of removals and insolvencies, may give, as the cause of in- 

(1) A suit for taxes on forfeited, property broi*ght under section 330 of the 

Revenue Law should be instituted in the name of the People of the State of Illinois as 
plaintiffs against the owners of the land in whose name the tax was assessed. The amount duo 
on the property, it is understood, includes all the taxes and costs whether State, county, school 
or other taxes. Opinion Att'y Gen. Edsall, July 16, 1877. 
* Amended, 1881. See Appendix, p. 487. - 



t>IV. VII.] FINAL SETTLEMENT Of COtJNTY COLLECTOR. §?! 

ability to collect, the same cause as sworn to by the- town or 
district collectors, stating in their return the fact that such was 
the statement made by the town or district collector, and that 
such tax still remains uncollected. 

232. Credit on forfeited property— Printers' fee.] § 232. If 
any lands or lots shall be forfeited to the state for taxes or special 
assessments, the collector shall be entitled to a credit in his final 
settlement, for the amount of the several taxes and special assess- 
ments thereon — tl^e county to allow the amount of printers' fees 
thereon, and be entitled to said fees so allowed, when collected. 

233. Settlement with county board.] § 233. On the third 
Monday in June, annually, the county board shall settle with 
and allow the county collector credit for such allowance as he 
may be legally entitled to. [See § 242. 

234. When collector to account with clerk.] § 234. If there 
be no session of the county board held at the proper time for set- 
tling and adjusting the accounts of the county collector, it shall be 
the duty of the collector to file the lists with the county clerk, who 
shall examine said lists and correct the same, if necessary, in like 
manner as said board is required to do. Said county clerk shall 
make an accurate computation of the value of the property and 
the amount of the delinquent tax and special assessments returned, 
for which the collector is entitled to credit. 

235. Clerk to certify to auditor.] § 235. The county clerk 
shall immediately, in either case, certify to the auditor of public 
accounts the valuation of property, and the amount of state taxes 
due thereon, for which the collector may be allowed credit. 

236. Clerk to certify to local authorities, etc.] § 236. The 
county clerk shall also, at the same time, certify to the several 
authorities or persons with whom the county collector is to make 
settlement, showing the valuation of property and amount of taxes 
and special assessments due thereon allowable to said collector in 
the settlement of their several accounts. 

237. Credits of final settlement— Examination of accounts, 

etc.] § 237. The auditor and other proper authorities or persons 
shall, in their final settlements with the collector, allow him credit 
for the amount so certified : Provided, that if the auditor or such 
other proper authorities or persons shall have reason to believe 
that the amount stated in said certificate is not correct, or that the 
allowance was illegally made, he or they shall return the same for 
correction ; and when the same shall appear to be necessary, in the 
opinion of the auditor or such other proper authorities or persons, 
he or they shall designate and appoint some competent person to 
examine the collector's books and settlement, and the person so 



3?2 BEYENTJE. [dIV. VII. 

designated and appointed shall have access to the collector's books 
and papers, appertaining to such collector's office or settlement, 
for the purpose of making such examination. [See § 242. 

238. Final order— Corrections, etc.] § 238. In all cases when 
the adjustment is made with the county clerk, the county board 
shall, at the first session thereafter, examine such settlement, and 
if found correct shall enter an order to that effect; but if any 
omission or error is found, said board shall cause the same to be 
corrected, and a correct statement of the facts in the case for- 
warded to the auditor and other proper authorities or persons, who 
shall correct and adjust the collector's accounts accordingly. 

PARTIAL SETTLEMENT OF COUNTY COLLECTORS. 
Section. 

239. April statement to clerk. 

240. Clerk to notify auditor, etc., amount due them. 

241. April payment to state treasurer. 

242.. Effect of failure of collector to obtain judgment. 

243. April payment to local authorities. 

244. To report and pay over to local authorities every ten days. 

245. Failure to make report— Suit. 

246. Failure to account and pay over— Suit. 

239. April statement to clerk.] § 239. On or before the 
tenth day of April, annually, after he has made settlement with 
town or district collectors, the county collector shall make a sworn 
statement, showing the total amounts of each kind of tax received 
by him from town or district collectors, and the total amount of 
each collected by himself — which statement shall be filed in the 
office of the county clerk. [As amended by act approved May 
3, 1873. 

240. Clerk to notify auditor, etc., amount due them.] § 240. 
The clerk shall immediately, on the receipt of such statement, 
certify to the auditor and to other proper authorities or persons, 
the amount for which the collector is required to settle with them 
severally, 

241. April] payment to state treasurer.] § 241. The county 
collector shall, on or before the fifteenth day of April following, pay 
over to the state treasurer the taxes in his hands, payable to the 
state treasury, as shown by the statement required by section 239, 
of this act. [As amended by act approved May 3, 1873. 

242. Effect of failure of collector to obtain judgment.] § 242. 
The failure of any county collector to obtain judgment shall not 
prevent him from presenting his statement of credits, and making 
settlement for taxes and special assessments in his hands, at the 
time required by this act ; but if, from no fault of the collector, he 
fail to obtain judgment and sale of delinquent real estate at the 



DIV. VII.] FINAL SETTLEMENT OF COUNTY COLLECTOB. " 373 

time required by this act, shall be allowed, in his settlements, a 
temporary credit for the amount of taxes and special assessments 
in such delinquent list, which delinquent taxes and special assess- 
ments shall be accounted for and paid immediately after sale is 
had. [See § 232. 

243 April payment to local authorities.] § 243. He shall, 
within the same time, pay over to the other proper authorities or 
persons, the amounts so shown to be in his hands, and payable to 
them. 

24:4c. To pay cities, etc., every ten days.] § 244. The county 
collector shall report and pay over the amount of tax and special 
assessments, due to towns, districts, cities, villages, corporations 
and persons, collected by him on delinquent property, at least 
once in every ten days, when demanded by the proper authorities 
or persons. [See Eev. Stat., ch. 24, § 113. 

245. Failure to make report — Suit.] § 245. Any county col- 
lector failing to make the reports and payments hereinbefore re- 
quired, for five days after the time specified for that purpose, or 
after demand made as aforesaid, the auditor or such other authori- 
ties or persons, may bring suit upon the collector's bond. 

246. Failure to account and pay over— Suit.] § 246. If any 
county collector fails to account and pay over as required in the 
preceding sections, his office may be declared vacant by the county 
board, or by any court in which suit is brought on his official bond. 

FINAL SETTLEMENT OF THE COUNTY COLLECTOR FOB STATE TAXES. 
Section. 

247. Manner of making settlement, etc. 

248. Duplicate statement— Correction. 
• 249. Over-payment refunded. 

250. How paid into treasury — Duplicate receipts. 

251. Interest on money due state. 

252. Auditor's certificate of settlement — Filing same. 

247. Manner of making settlement] § 247. The county clerk 
shall make out and deliver to the county collector, as soon as ad- 
justment is made with the county board or county clerk, annually, 
the statements, certificates and lists appertaining to the settlement 
of the accounts of such collector ; which statement, certificates and 
lists shall be made out in proper form, under his seal of office, on 
blanks which it is hereby made the duty of [the] auditor to fur- 
nish, annually, for that purpose. The collector shall deliver the 
same at the office of the auditor, and make a final settlement of 
his accounts, and pay the amount due the state into the state 
treasury on or before the first day of July next after receiving the 
tax books : Provided, that in all cases where the statements, cer- 
tificates and lists appertaining to the final settlement of a collector 



274 KEVENUE. [DIV. VIL 

are on file with the auditor, on or before the first day of July, the 
auditor shall not charge interest on the balance found due on the 
account of such collector, for fifteen days after mailing said audi- 
tor's statement showing balance due the state on such collector's 
account : Provided, further, that this section shall not be held to 
relieve any collector from the payment of interest charged on his 
account by reason of failure to make payment to the state, at other 
time or times, as required by this or any other act of the general 
assembly of this state. [As amended by act approved May 3, 1873. 

248. Duplicate statement to auditor.] § 248. The county clerk 
shall furnish a duplicate copy of said statement, duly certified, 
whenever requested so to do by the auditor. 

Correction.] If the statement of credits herein required, or any 
of the items therein, are objected to by the auditor, he shall return 
the statement to the county clerk, stating his objections, and said 
clerk shall examine and correct or explain the same satisfactorily, 
and return the statement to said auditor. 

249. Over-payment refunded.] § 249. If any collector shall 
have paid, or may hereafter pay, into the state treasury, any 
greater sum or sums of money than are or may be legally and 
justly due from such collector, after deducting abatements and com- 
missions, the auditor shall issue his warrant for the amount so 
overpaid, which shall be paid out of the fund or funds so overpaid 
on said warrant. 

250. How paid into treasury— Duplicate receipt.] § 250. 
Upon ascertaining the amount due to the state from any collec- 
tor or other person, the auditor shall give such person a state- 
ment of the amount to be paid, and upon the presentation of 
such statement to the state treasurer, and the payment of the 
sum stated to be due, the treasurer shall give duplicate receipts 
therefor, one of which shall be filed in the auditor's office, and 
entered in a book to be kept for that purpose, and the other shall 
be countersigned by the auditor and delivered to the person 
making the payment ; and no payment shall be considered as 
having been made until the treasurer's receipt shall be counter- 
signed by the auditor as aforesaid. 

251. Interest on money due state.] § 251. Any collector fail- 
ing to pay into the state treasury the amount due to the state, on 
his account for state and other taxes, at the time or times re- 
quired by this act, shall pay interest at the rate of ten per cent, 
per annum, from the time the same became due under this act, 
until the same is paid ; and it shall be the duty of the auditor 
to charge such interest to the account of every collector failing 
to pay at the time or times required in this act. In no case 



div. vii. J lien's of taxes 375 

shall the auditor be permitted to remit such interest, unless sat- 
isfactory evidence from the county board is presented to him, 
showing, by official action taken by such board, lawful cause 
why the collector could not pay over, in part or in whole, the 
amount due on such collector's account with the state. 

252. Auditor's certificate of settlement— Filing same.] §252. 

Upon the final settlement of any account with the state, the au- 
ditor shall give the collector duplicate certificates, under his seal 
of office, setting forth that said collector has settled and paid 
into the state treasury the full amount due from him on said 
account ; and it shall be the duty of the collector to file one of 
said certificates in the oifice of the county clerk, on or before 
the first day of August next after receiving the tax books. If 
any collector shall neglect or refuse to file one of said certificates 
as above required, the county clerk shall leave a written notice 
at the office of said collector, requiring him to appear before the 
county court, at the September term, thereof, and show cause 
why he has not filed the certificate aforesaid; and if the collec- 
tor shall not show that he has paid over the full amount due 
from him, and made a final settlement with the state and county, 
or that he has a lawful excuse for failing to do so, his office as 
collector and treasurer shall be declared vacant by said court, 
and the same filled as in other cases of vacancy by reason of 
death or otherwise. 







LIENS OF TAXES. 






Section 










253. 


Tax 


on real estate. 






254. 


Tax 


on personalty. 






255. 


Real 


and personalty tax. 






256. 


Lien in favor of agent, etc., 


for tax 


paid. 



253. Of tax on real estate.] § 253. The taxes assessed upon 
real property shall be a lien thereon from and including the first 
day of May in the year in which they are levied, until the same 
are paid.(l)* 

(1) The payment of taxes toy any person extinguishes them, and if a voluntary 
attempt is made to pay them a second time, the last will be considered a gratuity to the taxing 
power. Morrison v. Kelley, 22 III. R., 626. 

The taxes of any year may toe paid at any time toefore sale. Cofield v. Farry, 19 
111. R. , 183. 

The word "paid," on a collector's book, opposite a tract of land, is not evidence that 
the taxes were paid by the person in whose name the land is listed. Irwin v. Miller, 23 111. R., 401 

A tax receipt which simply shows that "dollars" were received, and fails to 
state that, whatever amount received, was in full of the taxes assessed, and there is no charac- 
ter opposite the figures to indicate what they are designed to represent, is fatally defective But 
in using the receipt under the seven year's limitation act, where it simply means the year for 
which tne taxes were paid, without giving the day or month when it was given, it is sufficient 
as showing the payment of the taxes assessed for that year. Cook v. Norton et al., 43 111. R., 391. 
* Amended. 1881. See Appendix, p. 488. 



376 REVENUE. [MY. VII. 



254. Tax on personalty.] § 254 The taxes assessed upon 
personal property shall be a lien upon the personal property of 
the person assessed, from and after the time the tax books are 
received by the collector. 

255. Real and personal tax.] § 255. Personal property shall 
be liable for taxes levied on real property, and real property 
shall be liable for taxes levied on personal property; but the 
tax on personal property shall not be charged against real prop- 
erty, except in cases of removals, or where said tax cannot be 
made out of the personal property ; but the tax on real property 
may be made out of personal property, at any time after the tax 
becomes due, by any collector having the tax books in his hands, 
by distraint and sale, in the manner provided in this act : Pro- 
vided, that judgment against real property, for non-payment of 
taxes thereon, shall not be prevented by showing that the owner 
thereof was possessed of personal property subject to distraint ; 
and no person shall be subject to have his personal property 
distrained and sold for tax on real estate, which may have been 
listed and assessed in his name, when he makes oath, or other- 
wise satisfies the collector, that he did not own such real prop- 
erty on the preceding first day of May.(l) [See § 183. 

256. Lien in favor of agent, etc., for tax paid.] § 256. 

When property is assessed to any person as agent for another, or 
in a representative capacity, such person shall have a lien upon 
such property, or any property of his principal in his possession, 
until he is indemnified against the payment thereof, or, if he has 
paid the tax, until he is reimbursed for such payment. 



A tax receipt which erroneously states the number of acres in a tract of land, 
but describes a Jegal sub-division, is good; the statement of the quantity is immaterial. Morri- 
son et al. v. Norman, et al., 47 111. R„ 478. 

The receipt describing the premises on which the taxes were paid, by No. 5 placed in a col- 
umn headed " lot," and 9 in the next column headed " block," then followed the figure 8 in the 
column headed "lot," but with no number opposite thereto in the column headed "block." 
Held, that this description was sufficient to justify the inference, nothing appearing to the con- 
trary, that lot was in the same block as lot 5. Daniels v. Barso, 40 111. R., 307. 

An affidavit of loss of receipts mie:ht authorize proof of their contents, but not the in- 
troduction of the collector's book to prove the word "paid" entered on them, the contents of 
such receipts. Irwin v. Miller, 23 111. R., 401. 

"Where taxes have been paid upon property legally liable to taxation, they cannot 
be recovered back, although the assessment was informal and irregular, and not strictly in con- 
formity with the statute, or the statute itself defective in respect to the manner in which the 
assessment is directed to be made. Board of Supervisors of Stephenson Co. v. Manny, 56 111. R., 160. 

(1) Personal property is subject to distraint and sale for taxes assessed upon 
real estate, if the same is still in force. It has been supposed that the amendment to section 
137, passed in 1873, operated as a repeal of section 255. I do not concur in this view. Opinion 
Att'y Gen. Edsall, March 22, 1877. 

On the foregoing subject Auditor Needles says : " The intention of the General Assembly was 
so manifest in its amendment to Sec. 137, that the then auditor at once ruled that personal 
property could not be distrained for tax on real estate, by town or district collectors, and such 
has continued to be the ruling of this office." Auditor Needles, Dec. 31, 1877. 



DIV. Vn.] SUITS AGAINST COLLECTORS. 377 



WHO NOT ELIGIBLE AS BONDSMAN. 

Section. 

257. Certain officers. 

257. Certain officers.] § 257. No judge of the county court, 
chairman of the county board, clerk of the circuit court, county 
clerk, sheriff, deputy sheriff or coroner shall be permitted to be 
a surety on the bond of a county, town, district or deputy collec- 
tor or county treasurer. 

LIABILITY ON BONDS. 

Section. 

258. Specified. 

258. Specified.] § 258. The bond of every county, town or 
district collector shall be held to be security for the payment by 
such collector to the state treasurer, county treasurer, and the 
several cities, towns and villages, and proper authorities and per- 
sons, respectively, of all taxes and special assessments which may 
be collected or received by him on their behalf, by virtue of any law 
in force at the time of giving such bond, or that may be passed or 
take effect thereafter. 



SUITS AGAINST COLLECTORS. 



Section. 



259. By auditor. 

260. Jurisdiction — Power of court. 

261. Proceedings in suit on bond by others. 

262. When bond sued by city, town, etc. 

263. Fees when state sues. 

259. Suit by auditor.] § 259. Upon the failure of any col- 
lector to make settlement with the auditor, or to pay money into 
the state treasury, it shall be the duty of the auditor to sue the col- 
lector and his sureties upon the bond of such collector, or to sue the 
collector in such form as may be necessary, and take all such pro- 
ceedings, either upon such bond or otherwise, as may be necessary 
to protect the interests of the state. [As amended by act approved 
March 24, 1874. 

260. Jurisdiction— Power of court.] § 260. When suit is in- 
stituted in behalf of the state, it may be in either division of the 
supreme court, or in the Sangamon county circuit court, or in any 
court of record in this state having jurisdiction of the amount; 
and process may be directed to any county in the state. In any 
proceeding against any officer or person whose duty it is to collect, 
receive, settle for or pay over any of the revenues of the state,whether 
the proceeding be by suit on the bond of such officer or person, or 



378 BEVENUE. [DIV. VII*- 

otherwise, the court in which such proceeding is pending shall 
have power, in a summary way, to compel such officer or person 
to exhibit, on oath, a full and fair statement of all moneys by him 
collected or received, or, which ought to be settled for or paid over,, 
and to disclose all such matters and things as may be necessary to 
a full understanding of the case ; and the court may, upon hearing, 
give judgment for such sum or sums of money as such officer or 
person is liable in law or equity to pay. And if, in a suit upon the 
bond of any such officer or person, he or his sureties, or any of 
them, shall not for any reason be liable upon the bond, the court 
may, nevertheless, give judgment against such officer or person, or 
against such officer and such of his sureties as are liable, for the 
amount he or they may be liable to pay, without regard to the form 
of the action or pleadings. [As amended by act approved March 
24, 1874. 

261. Proceedings in suit on bond by others.] § 261. When 
suit has been instituted by the auditor, any party aggrieved may 
proceed under the judgment obtained, upon the bond, by writ of 
inquiry of damages, as in other cases upon bonds. [As amended 
by act approved March 24. 1874. 

262. When bond sued by city, town, etc.] § 262. Cities, 
towns, villages or corporate authorities, or persons aggrieved, may 
prosecute suit against any collector or other officer collecting or 
receiving funds for their use, by suit upon the bond, in the name 
of the People of the State of Illinois, for their use, in any court 
of competent jurisdiction, whether the bond has been put in suit 
at the instance of the auditor or not; and in case of judgment 
thereon the auditor may, if he shall so elect, have a writ of inquiry 
of damages for any amount that may be due to the state treasury 
from such officer. Cities, towns, villages and other corporate 
authorities or persons, shall have the same rights in any suits or 
proceedings in their behalf as is provided in case of suits by or in< 
behalf of the state. [As amended by act approved March 24, 1874. 

263. Fees when state sues.] § 263. The state shall pay like 
fees as are or may be allowed by law in suits between individuals ; 
and in all cases when the state is plaintiff, it shall advance and 
pay such fees in like manner as individuals are required to advance 
and pay fees ; and when the state becomes the purchaser of real 
property sold on execution, for any debt due the state, the officer 
selling such real estate shall be entitled to like commissions as- 
he would have been entitled to had such property been purchased 
by an individual — said fees and commissions to be paid on the 
warrant of the auditor, out of any money in the treasury appropri- 
ated for that purpose ; and when such fees are collected they shall 
be paid into the state treasury. 



DIY. VII.] SALE OF EEAL ESTATE ON EXECUTION. 379 



SALE OF REAL ESTATE ON EXECUTION IN BEHALF OF THE STATE — RE- 
DEMPTION. 
Section. 

264. Notice of levy given to auditor — He to purchase in — Redemption. 

265. Payment of money collected. 

266. Where real property not redeemed, timber, etc. 

264. Notice of levy given auditor— He to purchase in— Re- 
demption.] § 264. When real estate shall be levied upon to satisfy 
any judgment in favor of the state, it shall be the duty of the offi- 
cer mating such levy, to transmit by mail, to the auditor, at least 
twenty days before the day of sale, a correct statement, showing 
the description and value of said property, in cash ; the truth of 
said statement shall be attested by the oath of said officer. Said 
officer shall, at the same time, furnish the auditor with an abstract 
of title of the property levied upon, the expense thereof to be 
charged and collected as costs. And the auditor is hereby author- 
ized and required to purchase, in his name, for the use of the People 
of the State of Illinois, at a price hot exceeding two-thirds of said 
value, so much of said property as may be required to pay the 
amount of the judgments and costs aforesaid ; and it shall be the 
duty of the officer making such sale to forward to the auditor a 
certificate of purchase, and make his return, as required in other 
cases of sales on execution. Any person desiring to redeem all or 
part of said property from such sale, shall pay the amount of re- 
demption money into the state treasury, and thereupon the auditor 
shall indorse such payment on the back of the certificate of pur- 
chase aforesaid, and deliver it to the person so paying, which shall 
have the same effect as redemptions have in other cases ; but no 
real estate purchased as aforesaid shall be considered redeemed 
from such sale until the redemption money is paid into the state 
treasury. Such certificate may be recorded in the recorder's office 
of the county in which such real property is situated, and shall 
operate as a release of record of such property. 

265. Payment of money collected.] § 265. All moneys received 
by any sheriff or other officer, on execution, in behalf of the state, 
shall be paid by such officer to the state treasurer, or to the col- 
lector of his county, as may be directed by the auditor, within 
twenty days after demand is made by said auditor. Said demand 
may be made by any person authorized by the auditor. 

266. When real property not redeemed— Timber, etc.] § 266. 
If any real estate, purchased by the state on execution, shall not 
be redeemed within the time required by law, it shall be the duty 
of the auditor to obtain a deed or deeds therefor, which he shall 
cause to be recorded in a book kept for that purpose in his office ; 
and shall take such steps as he shall deem necessary to protect 
the timber, or fixtures thereon from being lost or destroyed. 



380 EEVENTJE. [DIV. VIL 



DOUBLE PAYMENT AND ASSESSMENT — BEFUNDING. 

Section. 

267. Payment by different claimants, return, etc. 

268. Double assessment or payment— Refunding. 

267. Payment by different claimants— Return, etc.] § 267. 
Whenever the taxes on the same property shall have been paid 
more than once, for the same year, by different claimants, the 
county collector shall make a return to the county clerk of all such 
surplus taxes so received by him, together with the names of the 
several claimants thus paying. Certified copies of said return, or 
of record thereof, by the county clerk, or of the county clerk's re- 
port, by the auditqr, shall be 'prima facie evidence in all courts, 
when the same shall come in question, of the payment of tax on 
the property therein described for the year or years therein men- 
tioned. The county clerk shall make a full record of all such 
cases, and transmit a certified . copy thereof to the auditor, who 
shall charge such collector with the portion of such surplus taxes 
belonging to the state. The town or district collectors shall re- 
port such cases to the county collector, and he to the county clerk. 

268. Double assessment or payment— Refunding.] § 268. If 
any real property shall be twice assessed for the same year, or 
assessed before it becomes taxable, and the taxes so errone- 
ously assessed shall have been paid, either at sale or oth- 
erwise, or have been twice paid by different claimants, the county 
board, on application of the person paying the same, or his agent, 
and being satisfied of the facts in the case, shall cause the state 
and county taxes to be refunded pro rata by the state and county ; 
and the city and incorporated town or village taxes and special 
assessments, by the city or incorporated town, village or other 
proper authorities or persons. If any county, town or district 
collector shall receive the taxes or special assessments properly 
due on any real property, and the same shall afterwards be sold 
for said taxes or special assessments, he shall refund to the pur- 
chaser thereof, if application be made within three years from the 
date of said sale, double the amount of purchase money and all 
expenses of advertising said real estate under this act, requiring 
real estate purchased at tax sales to be advertised, including 
costs of deeds. Any collector neglecting or refusing to pay as 
required by this section, shall be liable to the county, or person 
in interest, in an action of debt in any court having jurisdiction. (1) 
[See § 213. 

(1) The evidence on which the State tax is refunded is the certificate of the county 
clerk, showing the action of the board of supervisors. The certificate should describe the 
property and show the years tax sold for or paid, or both, the amount of State and county tax 
separate, and the cause of error. Opinion Auditor Lippincott, Pec. 28, 1869. 



D1T. VII.] OTHER DUTIES OF AUDITOR. 38l 



WHEN RECORDS ARE DESTROYED. 

Section. 
269. New assessments. 

269. New assessment.] § 269. When assessment rolls or 
collector's books, in whole or in part, of any county, town, city, 
incorporated village or district, shall be lost or destroyed by any 
means whatever, a new assessment, or new books, as the case may 
require, shall be made under the direction of the county board. 
Said board shall, in such cases, fix reasonable times and dates for 
performing the work of assessment, equalization, levy, extension 
and collection of taxes, and paying over the same, or making 
new books, as the circumstances of the case may require. All 
the provisions of this act shall apply to the dates fixed by the 
county board, in the same manner that they apply to the dates 
for similar purposes, as fixed by this act. The county board is 
hereby fully empowered to select and appoint persons, where it 
may find the same necessary, to carry into effect the provisions 
of this section. 

OTHER DUTIES OF AUDITOR. 

Section. 

270. When a locality does not pay its share of tax. 

271. Auditor may sell property bought in by state. 

272. Abstracts — U. S., canal and Illinois Central Railroad lands. 

273. Forms — Instructions — Opinion. 

274. Act published. 

275. Swamp lands. 

270. When a locality does not pay its share of tax.] § 270. 

"Whenever it shall come to the knowledge of the auditor that any 
county, township, city, district or town, or any well denned lo- 
cality thereof, or any particular class of property therein, has 
heretofore been or may hereafter be released, from any cause 
.whatever, from its just proportion of state taxes, said auditor 
shall cause suit to be commenced in an action of debt, in the 
name of the People of the State of Illinois, either against the 
municipality or against the property unjustly released from taxa- 
tion, or the owners thereof, for the amount of such tax, in the 
supreme court of this state, in either division thereof; and when 
judgment may be recovered in any such case, the auditor shall 
levy a rate of tax on the equalized valuation of all property or 
particular class of property in such county, township, city, dis- 

After a deed has been given, erroneous sales can only be cancelled by the voluntary return 
of the deed. Opinion Auditor Lippincott, Aug. 20, 1869. 

In no case can the State be compelled to refund a tax voluntarily paid, upon a 
Claim of technical illegality in the assessment, provided the property on which it was paid was 
legally taxable. People ex rel. v. Miner, 46 111. K., 374. 



382 EEVENTJE. [DIV. VH. 

trict, town or locality, as the case may be, as will pay the state 
the amount of such judgment and costs ; and it shall be the duty 
of the county clerk of the proper county to extend such rate of 
tax with the state tax of the year directed in the auditor's certifi- 
cate. Any county clerk neglecting or refusing to extend such rate, 
as certified to him by the auditor, shall be removed from his office, 
and in addition thereto shall be subject to a fine of $5,000, and 
damages caused by such neglect or refusal, to be sued for by the 
auditor, in an action of debt, in the name of the People of the 
State of Illinois, in either division of the supreme court of this 
state : Provided, that in cases where the auditor and proper local 
authorities of the proper municipality, can arrange to make such 
levy to reimburse the state in such cases, without suit, the audi- 
tor is hereby authorized to pursue such course. 

271. Auditor may sell property bought in by state.] § 271. 
The auditor is authorized to sell, transfer and convey, by deed, 
any and all real estate that may have been heretofore, or may be 
hereafter, purchased or taken in payment, to satisfy any judg- 
ment or any execution in favor of the state, by this state or by 
any officer of this state, for the benefit and use of the state, to 
any person or persons who may pay into the state treasury the 
full amount paid by the state for said property, including costs, 
and six per cent, interest thereon, from the date of said sale to 
the time of such payment : Provided, that the sale of the real 
estate, in part or in whole, may be made at such price, not less 
than the price paid for such part or whole of the property, as 
the case may be, as the judge of the county court, chairman of 
the county board, and the sheriff of the county in which the 
estate is situated, shall certify the same to be worth ; or, if not 
sold in one year from and after the expiration of the time of re- 
demption now or hereafter allowed by law, said property may, if 
the auditor thinks the valuation fair, be sold by said auditor upon 
and for any valuation of said property which may be appraised 
and certified by the judge of the county court, chairman of the 
county board ^nd sheriff of the county in which such property is 
situated. 

272. Abstracts, United States, Canal and Illinois Central rail- 
road lands.] § 272. On the first day of May in each year, or as 
soon thereafter as practicable, the auditor shall obtain from the 
United States land office in this state abstracts of the lands en- 
tered and located, and not previously obtained, and shall, at the 
same time, obtain from the Illinois Central railroad, and Canal 
offices, abstracts of the Central railroad and Canal lands sold. 
Upon the receipt of said abstracts, cLe suditor shall cause them 
to be transcribed into the tract bocks ie. bis office, and shall, with- 



T>rv. yil] omitted PROPERTY SAVING CLAUSES. 383 

out delay, cause abstracts of the lands in each county, including 
school lands reported to his office as having been sold, to be made 
out and forwarded by mail to the county clerks of the several 
counties; and said clerks shall cause such abstracts to be trans- 
cribed into the tract book, and filed in their office. The expense 
of procuring and furnishing the abstracts required by this section, 
shall be paid by the auditor out of the appropriation for the ex- 
penses of his office. 

273. Forms —Instructions— Opinion.] § 273. It shall be the 
duty of the auditor to make out and forward to each county clerk, 
from time to time, for the use of such clerks and other officers, 
suitable forms and instructions ; and all such instructions shall be 
strictly complied with by the officers in the performance of their 
respective duties. He shall give his opinion and advice on all 
questions of doubt as to the true intent and meaning of the pro- 
visions of this act.(l) [See § 289. 

274. Act published.] § 274. The auditor shall, as soon as 
practicable after the passage of this act, cause the same to be cor- 
rectly printed in pamphlet form, and transmit to each county clerk 
a sufficient number of copies thereof for the use of the several 
county, town and district officers ; and said clerk shall deliver the 
same to the proper officers. 

275. Swamp lands.] § 275. The county clerks of the several 
counties shall, annually, report to the auditor a list of the swamp 
and overflowed lands sold in their respective counties for the year 
ending on the first day of May, and the auditor shall enter the 
same in the tract books of his office. 

m 
OMITTED PROPERTY — SAVING CLAUSES. 

SECTION. 

276. When discovered listed, and tax added— Personal tax. 

277. Tax not collected added to subsequent year. 

278. Not prior to date of ownership— Notice. 

279. Special assessments— Return limited. 

280. Failure to complete assessment in time not to vitiate. 

281. Informality not to vitiate. 

282. Failure to deliver tax books not to vitiate. 

283. Wrong name not to vitiate. 

276. When discovered listed, and tax added — Personal tax.] 

§ 276. If any real or personal property shall be omitted in the 
assessment of any year or number of years, or the tax thereon, 

(1) The opinions given by an officer -whose duty it is by law to give such opin- 
ion, in regard to the intent or meaning of a law, as a general rule, will be regarded favorably 
by the courts, and upheld unless clearly erroneous. 

The forms and instructions of the auditor, made out in conformity to law, must be used by 

• the revenue officers. But, if the auditor direct statistical financial or other items of information 

not required by law, the auditor cannot enforce the performance of such burden by rejecting 

the return, duly made out in conformity to law. Stark Co. Bank. v. McGregor, 6 Ohio St. 11., 45 c 



384 REVENUE. [DIY. YII. 

for which such property was liable, from any cause has not been 
paid, or if any such property, by reason of defective description 
or assessment thereof, shall fail to pay taxes for any year or 
years, in either case the same, when discovered, shall be listed 
and assessed by the assessor and placed on the assessment and 
tax books. The arrearages of tax which might have been as- 
sessed, with ten per cent, interest thereon, from the time the 
same ought to have been paid, shall be charged against such 
property by the county clerk. It shall be the duty of county 
clerks to add uncollected personal property tax to the tax of any 
subsequent year, whenever they may find the person owing such 
uncollected tax assessed for any subsequent year. [See § 77, 95. 

277. Tax not collected added to subsequent year.] § 277. If 

the tax or assessment on property liable to taxation is prevented 
from being collected for any year or years, by reason of any 
erroneous proceeding or other cause, the amount of such tax or 
assessment which such property should have paid may be added 
to the tax on such property for any subsequent year, in separate 
columns designating the year or years. [As amended by act ap- 
proved May 3, 1873. 

278. Not prior to date of ownership— Notice.] § 278. No such 
charge for tax and interest for previous years, as provided for in 
the preceding section, shall be made against any property prior 
to the date of ownership of the person owning such property at 
the time the- liability for such omitted tax was first ascertained: 
Provided, that the owner of property, if known, assessed under 
this and the preceding section, shall be notified by the assessor 
or clerk, as the case m|y require. (1) 

279. Special assessment— Return limited.] § 279. When any 
special assessment is not returned to the county collector on or 
before the first day of March next after it is due, the same may 
be returned on or before the first day of March in the succeeding 
year ; and, if not then returned, it shall be considered barred, 
unless return is prevented by an injunction or order of court ; 
and the time such return is thus prevented shall be excluded from 
the computation of such time. 

280. Failure to complete assessment in time not to vitiate.] 

§ 280. A failure to complete an assessment in the time required 

(1) Under Sec. 280 of tine Revenue Law, no objection can "be made to the mode 
in which an assessment lor taxation is made. Jf the property assessed is subject to taxation, 
and is assessed no more than its ratable share of taxes, it matters not whether the assessment 
was made in the mode pointed out by the statute or not. Pacific Hotel Co, v. Lieb et al., 83 111. 
R., 602. 

A failure to complete an assessment, or to return the sam in the time required by 
the act, dots not vitiate the same, but it must be held as legal and valid as if completed irn 
time. Wright v. The People ex rel., 87 111. R., 582 



DIV. VII.] PENALTIES OF OFFICERS. 385 

by this act shall not vitiate such assessment, but the same shall 
be as legal and valid as if completed in the time required by law. 

281. Informality not to vitiate.] § 281. No assessment of 
real or personal property, or charge for taxes thereon, shall be 
considered illegal on account of any informality in making the 
assessment, or in the tax lists, or on account of the assessments 
not being made or completed within the time required by law. 

282. Failure to deliver tax books not to vitiate.] § 282. Any 

failure to deliver the collector's books within the time required 
by this act, shall in no way affect the validity of the assessment 
and levy of taxes, but in all cases of such failure, the assessment 
and levy of taxes shall be held to be as valid and binding as if said 
books had been delivered at or within the time required by law. 

283. Wrong name not to vitiate.] § 383. No sale of real es- 
tate for taxes shall be considered invalid on account of the same 
having been charged in any other name than that of the rightful 
owner. 

WHO MAY ADMINISTER OATHS. 
Section. 
284. Officers enumerated. 

284. Officers enumerated.] § 284. Any oath, authorized to be 
administered under this act, may be administered by an assessor 
or deputy assessor, or by any other officer having authority to 
administer oaths. 

PENALTIES OF OFFICERS. 
Section. 

285. For delivering or receiving books before collector's bond filed. 

286. Collector — Neglect to obtain judgment, etc. 

287. Failure to do any duty under this act. 

288. Refusal by clerk, assessor, collector and other officers to do duty. 

285. Delivering books before collector's bond filed.] § 285. 

If any county clerk shall deliver the tax books into the hands 
of the county collector, or if any collector shall receive said 
books or collect any taxes until such collector's bond has been 
approved and filed, as required by this act, said clerk and col- 
lector, and each of them, shall be liable to a penalty of not less 
than $500, and all damages and costs, to be recovered in an action 
of debt; and the auditor shall bring suit therefor, in the name 
of the People of the State of Illinois — the amount recovered on 
such fines to be paid into the state treasury as revenue fund. 
Nothing in this section shall be construed as relieving the secu- 
rities of a collector from liabilities incurred under a bond not 
approved and filed by the auditor. [See § 135, 145. 

286. Collector— Neglect to obtain judgment, etc.] § 286. If 
any collector shall, by his own neglect, fail to obtain judgment 

25 



386 REVENUE. [DIV. VEL 

at the May term of the county court, or shall fail to present his 
list of delinquencies on personal property, or errors in assess- 
ment of real estate, at the time required by this act, he shall lose 
the benefit of any abatement to which he might have been en- 
titled, and shall pay to the state and county the full amount 
charged against him, after deducting the fees allowed by this act 
for collecting and paying over taxes. If the county court is not 
held at the May term, the collector shall have further time to 
pay over the amount due on the delinquent list. 

287. Failure to do any duty under this act.] § 287. If any of- 
ficer shall fail or neglect to perform any of the duties required 
of him by this act, upon being required so to do by any person 
interested in the matter, he shall be liable to a fine of not less 
than $10 nor more than $500, to be recovered in an action of 
debt in the circuit court of the proper county, and may be re- 
moved from office at the discretion of the court; and any officer 
who shall knowingly violate any of the provisions of this act, 
shall be liable to a fine of not less than $10 nor more than $1,000, 
to be recovered in an action of debt, in the name of the People 
of the State of Illinois, in any court having jurisdiction, and may 
be removed from office at the discretion of the court, and said 
fines, when recovered, shall be paid into the county treasury. 

288. Refusal by clerk, assessor or other officer to do duty.] § 

288. Every county clerk, assessor, collector or other officer who 
shall in any case refuse or knowingly neglect to perform any duty 
enjoined upon him by this act, or who shall consent to or con- 
nive at any evasion of its provisions, whereby any proceeding re- 
quired by this act shall be prevented or hindered, or whereby 
any property required to be listed for taxation shall be unlaw- 
fully exempted, or the same be entered upon the tax list at less 
than its fair cash value, shall, for every such offense, neglect or 
refusal, be liable, on the complaint of any person, for double the 
amount of the loss or damage caused thereby, to be recovered in 
am action of debt, in the name of the People of the State of Illi- 
nois, in any court having jurisdiction, and may be removed from 
his office at the discretion of the court. 

COUNTY TO FURNISH BOOKS AND BLANKS. 

Section. 
289. Clerk to procure them. ( 

289. Clerk to procure them.] § 289. The county board shall 
direct the county clerk to procure all necessary books and blanks 
required by this act to be used in the assessment of property 
and collection of taxes, at the expense of the county. [See § 
273 ; also, "Counties," § 26. 



DIV. Vn.] KEEPING ACCOUNTS OF COUNTY FUNDS. 387 



COUNTY FUNDS — MANNER OF KEEPING ACCOUNTS THEREOF. 

Section. 

290. By collector, etc. 

291. By county clerk, etc. 

290. By collector, etc.] § 290. The county collector shall, on 
the first of every month, report to the county clerk, in writing, 
the amount of county tax received by him during the preceding 
month, showing what amount of said tax was received in money, 
and what amount in county orders and jury certificates. The 
county collector shall keep his account as collector of taxes sepa- 
rate from his account as county treasurer. He shall credit his 
amount as collector with the amount of his monthly reports to the 
county clerk, and with the amount of insolvencies, removals, errors, 
forfeitures, and other credits allowed him on settlement with the 
county board; and as county treasurer he shall charge himself 
with the amount shown in his monthly report to the county clerk, 
as aforesaid, and such other amounts as may come into his hands 
as county treasurer ; and he shall, as such treasurer, at the close 
of each month, cancel the county orders and jury certificates in 
his hands, and return the same with a descriptive list, giving num- 
bers and amounts properly footed, to the county clerk, who shall 
carefully compare and file the same in his office, subject to the 
order of the county board, and give the treasurer a receipt for the 
same ; which receipt shall be evidence upon which the county 
treasurer shall take credit in his accounts as such treasurer, with 
the county, subject to the approval of the county board. The 
county board shall examine such account and vouchers, at such 
time or times, by committee or otherwise, as may be deemed 
requisite. 

291. By clerk, etc.] § 291. Each county clerk shall keep an 
account with the county collector, charging him with the amount 
of county tax placed in his hands for collection, and with the 
county tax received by him for sales and redemptions of forfeited 
property, and with any other funds, belonging to the county, that 
shall come into the collector's hands ; and shall credit him with 
the amounts ascertained as required in the preceding section, 
charged to the county treasurer's account monthly; also, with 
amount of county tax on insolvencies, removals, errors, forfeited 
property, etc., whenever ascertained in the manner required by 
this act. The county clerks shall also keep a treasurer's account 
with the county treasurer of their respective counties. The treas- 
urer shall be charged with the amount of money, county orders 
and jury certificates reported in the collector's monthly statements 
required to be made in the preceding section, and all amounts paid 



388 REVENUE. [DIV. VII. 

to the county treasurer from other sources than the county revenue 
tax ; and it is hereby made the duty of all persons paying money 
into the county treasury, for all purposes except the county taxes, 
to first obtain from the county clerk an order on the treasurer to 
receive the same ; and the treasurer shall give the person so pay- 
ing duplicate receipts therefor, one of which shall be countersigned 
by the county clerk, and retained by the person paying over the 
amount, and the other filed in the county clerk's office, and the 
amount thereof charged against the treasurer. The treasurer's 
account shall be credited, monthly, with the amount of county 
orders and jury certificates cancelled and filed in the county clerk's 
office, as required in the preceding section. 

DEFINITIONS. 

Section. 

292. Words and phrases. 

293. Power of county court, until, etc. 

292. Words and phrases.] § 292. The words and phrases fol- 
lowing, whenever used in this act, shall be construed to include in 
their meaning the definitions set opposite the same in this section, 
whenever it shall be necessary to the proper construction of this act. 

1st, Assessor — Assessors. — Town, district and deputy assessors. 

2d. Auditor. — Auditor of public accounts. 

3d. Bank — Banker — Broker — Stock-jobber. — Whoever h as 
money employed in the business of dealing in coin, notes or bills 
of exchange, or in the business of dealing in or buying or selling 
any kind of bills of exchange, checks, drafts, bank notes, promis- 
sory notes, bonds or other writing obligatory, or stocks of any 
kind or description whatsoever, or receiving money on deposit. 

4th. Collector — Collectors. — County, town, district and deputy 
collectors. 

5th. County board. — The board of supervisors — the board of 
county commissioners. 

6th. Credits. — Every claim or demand for money, labor, inter- 
est, or other valuable thing, due or to become due, not including 
money on deposit. 

Yth. He. — Male, female, company, corporation, firm, society, 
singular or plural number. 

8th. Money — Moneys. — Gold, silver or other coin, paper or other 
currency used in barter and trade as money, in actual possession, 
and every deposit which the person owning, holding in trust, or 
having the beneficial interest therein, is entitled to withdraw in 
money on demand. 



BIT. YII.] DEFINITIONS — REPEALING CLAUSE. 389 

9th. Number. — The singular number shall include the plural, 
and the plural number shall include the singular. 

10th. Oath. — Oath or affirmation. 

11th. Person — Persons. — Male, female, corporation, company, 
firm, society, singular or plural number. 

12th. Real property— Real estate— Land— Tract— Lot— Not 
only the land itself, whether laid out in town or city lots, or other- 
wise, with all things contained therein, but also all buildings, 
structures and improvements, and other permanent fixtures, of 
whatsoever kind, thereon, and all rights and privileges belonging 
or in anywise pertaining thereto, except where the same may be 
otherwise denominated by this act. 

13th. Shares of stock— Shares of capital stock. — The shares 
into which the capital or stock of every incorporated company or 
association may be divided. 

14th. Tax— Taxes. — Any tax, special assessments or costs, 
interest or penalty imposed upon property. 

293. Power of county court, until, etc.] §293. In all counties 
not under township organization, the county court, or judge of the 
county court, as the case may require, shall perform all the duties 
required in this act to be performed by the county board, or chair- 
man of the county board, as the case may be, in such counties, 
until such time as the board of county commissioners shall be duly 
sleeted and qualified in said counties. 

BEPEALING CLAUSE. 

Section. 

294. Act repealed. 

295. Bridges on border of state — How assessed. 

296. Sale of bridge, etc., for tax. 

297. Repeal. 

294. Acts repealed.] § 294. The laws and parts of laws enti- 
tled as hereinafter named are hereby repealed : 

[The acts repealed are omitt&d, as thev are enumerated in Rev. 
Stat., ch. 131, § 5.] 

The repeal of said acts and parts of acts shall not be construed 
to impair any right existing, or affect any proceeding pending, at 
the time this act shall take effect ; but all proceedings for the 
assessment of any tax, or collection of any tax or special assess- 
ment then remaining incomplete, may be completed pursuant to 
the provisions of this act. The provisions of this act shall apply 
to redemptions from sales made for taxes or special assessment 
previous to the taxing effect hereof, and the mode of giving notice, 
and issuing deeds upon certificates of sales made for taxes. 



390 REVENUE. [DIV. VIL. 



AN ACT to provide for the assessment and taxation of bridges across navigable waters on the 
borders of this state. [Approved and in force May 1, 1873.] 

295. Bridges on border of state— How assessed.] § 1. That 
all bridge structures across any navigable streams forming the 
boundary line between the state of Illinois and any other state, 
shall be assessed by the township or other assessor in the county 
or township where the same is located, as real estate ; and all pro- 
visions of law relating to the assessment and taxation of real 
estate, shall apply to the assessment and taxation of such bridges. 
Such assessor shall give in his description the quarter section, sec- 
tion, township and range in which such bridge is located or ter- 
minates in this state, together with the metes and bounds of the 
ground occupied by such bridge, and the approaches thereto from 
the end on the Illinois shore to the center of the main channel of 
the stream crossed by the same. For the purpose of obtaining: 
such description the assessor may employ a competent surveyor, 
and the expense of making such survey and description shall be 
charged as a tax against such property by the county clerk, on the 
certificate of the surveyor : Provided, that one survey of any 
bridge and approaches, made under this act, shall be deemed suf- 
ficient for the purpose of subsequent assessment of such bridge or 
approaches. 

296. Sale of bridge, etc., for tax,] § 2. In default of the pay- 
ment of the tax assessed against any such bridge company, as- 
aforesaid, such bridge structure and approaches thereto, so far as 
the same are located within this state, together with the land on 
which the same is located, as described by the assessor, and the 
franchise belonging thereto, shall be sold for such tax at the same 
time and in the same manner as other real estate shall be sold in 
such county for delinquent taxes. 

297. Repeal.] § 3. All acts and parts of acts inconsistent with 
this act are hereby repealed 

ILLINOIS CENTBAL RAILROAD. 
Section. 

308. Seven per cent of the gross income. 

309. Lands taxable when conveyed — Application of tax etc. 

308. Seven per cent of the gross income.] § 18. In consider- 
ation of the grants, privileges and franchises herein conferred 
upon said company for the purposes aforesaid, the said company 
shall, on the first Mondays of December and June in each year, 
pay into the treasury of the state of Illinois five per centum on 
the gross or total proceeds, receipts or income derived from said 
road and branches, for the six months then next preceding. The 
first payment of such percentage on the main trunk of said road 



DIV. Vn.] ILLINOIS CENTRAL RAILROAD. 391 

to commence four years from the date of said deed of trust, and 
on the branches, six years from the date aforesaid, unless said 
road and branches are sooner completed, then from the date of 
completion. And for the purpose of ascertaining the proceeds, 
receipts or income aforesaid, an accurate account shall be kept 
by said company, a copy whereof shall be furnished to the gov- 
ernor of the state of Illinois ; the truth of which account shall 
be verified by the affidavits of the treasurer and secretary of such 
company. And for the purpose of verifying and ascertaining the 
accuracy of such account, full power is hereby vested in the 
governor of the state of Illinois, or any other person by law ap- 
pointed, to examine the books and papers of said corporation, 
and to examine, under oath, the officers, agents and employees 
of said company, and other persons. And if any person, so ex- 
amined by the governor or other authority, shall knowingly and 
willfully swear falsely, or if the other officers making such affida- 
vits shall knowingly and willfully swear falsely, every such per- 
son shall be subject to the pains and penalties of perjury. [Pr. 
L. 1851, p. 71, § 18. 

309. Lands taxable when conveyed— Application of tax, etc.] 

§ 22. The lands selected under said act of congress, and hereby 
authorized to be conveyed shall be exempt from all taxation un- 
der the laws of this state, until sold and conveyed by said cor- 
poration or trustees, and the other stock, property and effects of 
said company shall be, in like manner, exempt from taxation for 
the term of six years from the passage of this act. After the ex- 
piration of six years, the stock, property and assets belonging to 
said company shall be listed by the president, secretary, or other 
officer, with the auditor of state, and an annual tax for state pur- 
poses shall be assessed by the auditor upon all the property and 
assets of every name, kind and description belonging to said cor- 
poration. "Whenever the taxes levied for state purposes shall 
exceed three-fourths of one per centum per annum, such excess 
shall be deducted from the gross proceeds or income herein re- 
quired to be paid by said corporation to the state, and the said 
corporation is hereby exempted from all taxation of every kind, 
except as herein provided for. The revenue arising from said 
taxation, and the said five per cent, of gross or total proceeds, 
receipts or income aforesaid, shall be paid into the state treasury 
in money, and applied to the payment of interest-paying state 
indebtedness until the extinction thereof : Provided, in case the 
five per cent, provided to be paid into the state treasury, and the 
state taxes to be paid by the corporation, do not amount to seven 
per cent, of the gross or total proceeds, receipts or income, then 
the said company shall pay into the state treasury the difference, 



392 REVENUE. [DIY. TEL 

so as to make the whole amount paid equal, at least, to seven 
per cent, of the gross receipts of said corporation. (1) [Pr. L. 
1851, p. 71, § 22. 

AGKICULTUKAL AND OTHEE STATISTICS. 

AN ACT to secure the collection and publication of agricultural and other statistics. [Ap- 
proved and in force May 25, 1875.] 

Section. 

1. Blanks and schedules. 

2. How schedules to be filled and returned. 

3. Duty of officers. 

4. Statistical returns — How made. 

1. Blanks and schedules.] § 1. That it shall be the duty of 
the secretary of the state board of agriculture to prepare and 
deliver to the auditor on or before the first day of April in each 
year, forms of blanks and schedules similar to those used in the 
assessment and return of property, one or more copies of which 
forms the state auditor shall send by mail to the county clerks of 
the several counties on or before the date aforesaid for their in- 
formation and guidance. 

2. How schedules to be filled and returned. ] § 2. It shall be the 
duty of the county clerk of each of the several counties to pro- 
vide schedules and blanks according to the forms provided by 
the auditor for the use of assessors, and it shall be the duty of 
assessors and deputy assessors in the same manner, and at the 
same time as is or may be provided by law for the assessment of 
property, to cause such census schedules to be filled by all per- 
sons within their respective assessment districts in possession of 
property concerning which information is required by this act. 
Such schedule shall truly and distinctly set forth the number of 
acres he, she or they may have had the preceding year in fall 
wheat, spring wheat, corn, rye, oats, barley, buckwheat, castor 
beans, beans, peas, Irish potatoes, sweet potatoes, turnips and 
other root crops, and the number of bushels of each produced 
the preceding year; the number of acres in timothy grass, and 
the number of tons of hay and bushels of seed produced there- 
from the preceding year ; the number of acres in clover, and the 
number of tons of hay and the bushels of seed produced there- 
from the preceding year ; the number of acres planted in cotton, 
and the number of pounds of lint and the bushels of seed ob- 
tained therefrom the preceding year; the number of acres sown 
in flax, the number of pounds of fibre and the bushels of seed 
obtained therefrom the preceding year ; the number of acres 

(1) El. Cent. R. R. Co. v. Irwin, 72 111. R., 452. 



DIY. Vn.] ILLINOIS CENTRAL RAILROAD — DOGS. 393 

planted in tobacco, and the number of pounds produced there- 
from the preceding year. And the secretary of the state board 
of agriculture shall have power, after the first year, to add to or 
omit from the foregoing schedule such items as the said state 
board of agriculture shall designate. 

3. Duty of officers.] § 3. It shall be the duty of all persons 
owning or in possession of property concerning which informa- 
tion is required by this act, to make out and deliver to the 
assessor at the time fixed for the listing of property for taxation 
a schedule as aforesaid properly and correctly filled, and it shall 
be the duty of said assessors or deputy assessors to properly fill 
and add up the blanks and schedules aforesaid and to return the 
same correctly footed up, to the county clerk at the same time 
and in the same manner as is now or may be required for the 
return of assessments. 

4. Statistical returns.] § 4 It shall be the duty of the county 
clerk to revise, correct, tabulate and foot up the statistical re- 
turns made to him by the assessors or deputy assessors of 
organized townships in counties under township organization, 
and of congressional townships in counties not under township 
organization, and to transmit to the state auditor with his return 
of the assessment of the county an abstract of the agricultural 
statistics of the county in the form required by the schedule and 
blanks furnished by the auditor ; and it shall be the duty of the 
auditor to transfer without delay such abstracts to the secretary 
of the state board of agriculture, who shall revise, correct, and 
compile the same, and publish the results in the annual report 
of the transactions of the state board of agriculture for the year 
or years in which the statistics were collected. 

DOGS. 

AN ACT so indemnify the owners of sheep in cases of damage committed by dogs. [Approved 
May 29, 1879.] As amended by Act of 1881. 

Section. 

1. Assessor to make list. 

2. License fee. 

3. License fund— How paid out. 

4. Payment not to bar action, when. 

5. Affidavit to show damage. 

6. Damages, how ascertained. 

7. Summons. 

8. Fees of justice, appraisers, etc. 

9. Meaning of " dog." 

1. Assessor to make list.] § 1. That each county and township 

assessor in this state, when making the assessment, shall annually 
make a list of the names of all persons who own or keep a dog or 



394 KEVENUE. [DIV. VIL. 

dogs, and set opposite the name of such owner or keeper the num- 
ber of dogs he or she has in his or her possession, or that is or 
are kept on his or her premises ; which list shall be returned by 
such assessor to the county clerk of the county in which said list 
is taken as soon as the assessment is completed. 

2. License fee.] § 2. The county clerk shall charge upon the 
collector's book against the name of each person reported and re- 
turned as the owner or keeper of a dog or dogs, as a license fee,, 
the sum of one dollar for each dog owned or kept by such person,, 
which fee shall be collected at the same time, and in the same 
manner as taxes upon personal property. In counties not under 
township organization, the collector shall pay the amount received 
from the licenses aforesaid to the treasurer of his county, and in 
counties under township organization the sum so collected in each, 
town, shall be paid by the collector to the supervisor of his town, 
who shall first give to the People of the State of Illinois, for the 
use of the inhabitants of his town, a bond with at least two sure- 
ties, to be approved by the board of supervisors of his county, 
in double the sum of such license fees in his town, conditioned 
that he will faithfully pay out said fund as hereinafter provided. 
Said bond shall be filed and remain in the office of the county 
clerk of the proper county.(l) 

3. License fund — How paid out.] § 3. It shall be the duty of 
the county treasurers and supervisors having the custody of the 
funds collected as license fees as aforesaid, to pay the same out in 
the manner following : 

First — By such county treasurers to the owners of sheep in 
their respective counties, and by the supervisors to the owners of 
sheep in their respective tarwns, who shall make proof to them 



(1) Form of Bond of Supervisor. 

Know all men by these presents, that A. B., supervisor of the town 

df , in the county of , and State of Illinois, and C. D. and E. 

F., sureties, are held and firmly bound unto the People of the State of 

Illinois, for the use of the inhabitants of the town of , in the county 

and State aforesaid, in the penal sum of dollars, which sum well 

and truly to be paid we bind ourselves, our heirs, executors and adminis- 
trators, jointly and severally, firmly by these presents. Signed and sealed 
this day of , A. D. 18—. 

The condition of the above obligation is such, that if the above bounden 
A. B., as supervisor of the town of , in the county and State afore- 
said, will faithfully pay out, as provided by law, all moneys coming into' 
his hands as fees for the license of dogs in his said town, then this obliga- 
tion to be void, otherwise to remain in full force and effect. 

At B., [seaii..] 
Supervisor. 

C. D., [SEAIj.]' 
E. F., [SEAI^l 



DTY. VII.] DOGS. 39i> 

before the first Monday of March in each year, of loss or injury 
to sheep by dogs, other than their own, the full amount of the 
loss or injury so proved, if there are funds sufficient to pay the 
same; if there be not sufficient funds to pay such loss or injury 
in full, then the owners of sheep so sustaining loss or injury as 
aforesaid, and making proof thereof as in this act provided, shall 
be paid out of such fund in proportion to his or her loss or injury, 
or his or her pro rata share thereof. 

Second — If there be a balance of such license fund left in the 
hands of the county treasurer or town supervisor, after paying 
the losses and injuries sustained as aforesaid, such balance shall 
be turned into the current county funds, in counties not under 
township organization, and be appropriated as the county board 
may direct; and by the supervisor of the town, in counties under 
township organization, into the general fund of the town, to be 
disposed of as such town shall see proper. [ As amended, 1881. 

4. Payment not to bar action, when.] § 4. The payment to 
any owner of sheep of money for damages resulting from loss or 
injury to his or her sheep, shall not be a bar to an action by such 
owner against the owner or keeper of the dog or dogs committing 
such injury or causing such loss, for the recovery of damages 
therefor. The court or jury before whom such action is tried 
shall ascertain from evidence what portion, if any, of the dam- 
ages sought to be recovered in such action has been paid to the 
plaintiff in such action by the county treasurer or supervisor 
of the proper county or town; and in case the plaintiff in 
such action recovers damages, the court shall enter judg- 
ment against the defendant, in the name of the plaintiff, for 
the use of the proper county or town as the case may be, for the 
amount which the plaintiff has received on account of such dam- 
ages from the county treasurer or supervisor of the proper county 
or town, if such recovery shall equal or exceed the amount so 
received by such plaintiff from the county treasurer, or town su- 
pervisor of his county or town ; and the residue of such recovery, 
if any there be, shall be entered in the name of the plaintiff in 
such action to his own use ; if the amount of the recovery in such 
action shall not equal the amount previously paid to the plaintiff 
on account of such damages by the county treasurer or the town 
supervisor of the proper county or town, then the judgment shall 
be entered as aforesaid, for the use of such county or town, for 
the full amount of such recovery. Writs of execution issued upon 
such judgments shall show on their face what portion of the judg- 
ment is to be paid to the proper county or town, and what portion 
is to be paid to the plaintiff in such action, and the judgment 
when collected shall be paid over to the parties entitled thereto, 
in their proper proportions. 



396 BEYENUE. [DIV. VII. 

5. Affidavit to show damage— Proceedings of justice. §5. 

ISTo person having sheep killed or injured, as aforesaid, shall be 
entitled to receive any portion of the funds herein provided for, 
unless he shall appear before the nearest justice of the peace who 
can be found, within three days from the time when such injury 
or damage is discovered, and make affidavit stating the number of 
sheep killed or injured, that the name of the owner or keeper 
of the dog or dogs which destroyed or injured the applicant's 
sheep, is or are unknown, or if known, then stating the name, 
and that such owner or keeper is insolvent, and that the appli- 
cant has received no compensation from the owner or keeper, or 
any other person, for the damage sustained, and thereupon the 
said justice of the peace shall enter the same on his docket in the 
same manner as other suits are docketed, and shall proceed to 
hear testimony of one or more freeholders as to the number and 
value of the sheep killed or injured, and from such evidence shall 
find the damages sustained, and shall make a record of his finding 
as of judgments in other cases. He shall, upon the request of 
the applicant in such proceeding, make a certified copy from his 
docket of said proceeding, and the same with the original affidavit 
of the applicant, shall be filed with the county treasurer in coun- 
ties not under township organization, and in counties under town- 
ship organization with the supervisor of the town in which such 
sheep were injured or destroyed, within ten (10) days thereafter, 
and when so filed shall be sufficient evidence of loss or damage 
by dogs as aforesaid, and the license fund as aforesaid shall be 
paid out thereupon on the first Monday of March in each year, 
as hereinbefore provided. (1) [As amended, 1881. 



(1) Form of Affidavit by Owner of Sheep. 
State of Illinois, 



County, r '" 



A. B. being duly sworn on oath, deposes and says, that on the day 

of , A. D. 18 — , ten sheep owned by him, in the town of , 

were killed [or injured] by a dog, other than his own, but owned [or 
kept] by C. D. ; that said C. D. is insolvent ; that affiant has received no 
■compensation from the owner [or keeper] of said dog, or from any 
other person for his damages sustained aforesaid. 

Subscribed and sworn to before me this ) A. B. 

day of , A. D. 18—. [ 

P. K., N. P. J 

If the owner of the dog or dogs is unknown the affidavit may be in the following form: . 
A. B. being duly sworn on oath, deposes and says, that on the — - day 
of — '■ , A. D. 18 — , [number'] sheep owned by him were killed [or in- 
jured] by a dog, other than his own, the owner [or keeper] of which is 
unknown to him [or her.] 



DIV. VII. ] DOGS. 397 

6. Fees of justices and witnesses. § 6. The justice of the 
peace before whom such application is made, shall receive for 
hearing and certifying the same, the sum of one dollar, and the 
witnesses, not exceeding three shall be allowed fifty cents each. 
All fees given for services under this act shall be paid out of the 
fund created by this act, prior to its disposition as provided in the 
third section of this act. [As amended, 1881. 

Form of Docket entry by Justice in case of sheep Killed by Dogs. 

State of Illinois, \ 

County, r s - 

In the matter of application ) Before L. M., nearest Justice of the peace, 
of A. B., in case of > 
sheep killed by dogs. ) Damages claimed, $100. 

188 — , July 4. This day appeared A. B., and made affidavit that (state 

number) sheep owned by him in the town of .were on the 

day 188 — , killed by dogs other than his own, but owned (or kept) by 

CD., that said C. D. is insolvent ; that affiant has received no compensa- 
tion from the owner (or keeper) of said dogs, or from any other person for 
his damages sustained aforesaid. Whereupon the testimony of two free- 
holders was heard as to the number and value of said sheep, from 
which it is found that the number of sheep killed, of which said claimant 

is the owner, is (state number,) and that his damages therefor are 

dollars. It is, therefore, considered and adjudged that said A. B., ,has 
sustained damages for (number) sheep killed by dogs not his own in 

said town of , in the sum of dollars, and that he is entitled to 

compensation therefor as provided by law in such cases. 



>ss. 



Form of Justice's Certificate to Copy of Docket. 

State of Illinois, 

County, 

I, L. M., a justice of the peace of said county do certify that the forego- 
ing is a correct copy from my docket of the proceedings therein set forth. 

Given under my hand this day of , 188—. L. M., 

Justice of the Peace. 



DIV. Yffl.] ELECTORS OF PRESIDENT AND YICE PRESIDENT. 399 



DIVISION VIII. 

ELECTIONS. 

AN ACT in regard to election*, and to provide for filling vacancies in elective offices. [Ap« 
proved April 3, 1872. In force July 1, 1872. L. 1871-2, p. 380, Rev. Stat., ch. 46.] 

ELECTORS OP PRESIDENT AND YIOE-PRESIDENT OP UNITED STATES. 

Section. 

1. Election. 

2. Returns— Canvass— Tie. 

3. Result published— Certificate sent to person elected. 

4. Meeting of electors — Mileage. 

5. Vacancies filled. 

1. Elections.] § 1. That there shall be elected, by general 
ticket, on the Tuesday next after the first Monday in November 
preceding the expiration of the term of office of each president of 
the United States, as many electors of president and vice-president 
of the United States as this state may be entitled to elect — which 
election shall be conducted and returns thereof made as herein- 
after provided : Provided, that if congress should hereafter fix 
a different day for such election, then the election for electors 
shall be held on such day as shall be named by act of congress. (1) 

2. Returns — Canvass— Tie.] § 2. The county clerks of the 
several counties shall, within eight days next after holding an elec- 
tion for electors of president and vice-president of the United 
States, as is provided for in this act, make three copies of the 
abstract of votes for electors, and transmit by mail one of said 
copies to the governor, another to the office of the secretary of 
state, and retain the third in his office, to be sent for by the gov- 
ernor in case both the others should be mislaid. Within twenty 
days after the holding of such election, and sooner if all the re- 
turns are received by either the governor or by the secretary of 
state, the secretary of state, auditor of public accounts and treas- 
urer, or any two of them, shall, in the presence of the governor, 

(1) The constitution of the United States, Art. II., Sec. 2, has made the following pro- 
vision concerning the electors of president and vice-president: 

"Each State shall appoint, in such manner as the legislature thereof may direct, a number of 
electors equal to the whole number of senators and representatives to which the State may be 
entitled in the Congress; but no senator or representative, or person holding an office of trust or 
profit under the United States shall be appointed an elector." 

Concerning the meeting of electors of president and vice-president, the Con- 
stitution. Art. IT, Sec. 4, provides as follows: 

"The Congress may determine the time of choosing the electors and the day on which they 
shall give their votes, which day shall be the same throughout the United States." 

Congress, by act of January, 23, 1815, provided that the election for electors of president and 
vice-president shall be on Tuesday after the first. Monday in November, and by act of March 1, 
1792, that the day of giving their votes for president and vice-president shall be the first Wed- 
nesday in December, 



4:00 ELECTIONS. [DIV. Vm, 

proceed to open and canvass said election returns, and to declare 
the persons having the highest number of votes elected; but 
should any two or more persons be returned with an equal and the 
highest vote, the said secretary of state shall cause a notice of the 
same to be published, which notice shall name some day and place, 
not less than five days from the time of the publication of such 
notice, upon which the said secretary, auditor and treasurer will 
decide by lot which of said persons so equal and highest is- 
elected. And upon the day and at the place so appointed in said 
notice, the said secretary, auditor and treasurer, or any two of 
them, shall, in the presence of the governor, decide by lot which* 
of the persons so equal and highest shall be elected. 

3. Result to be published— Certificate sent to person elected.] 

§ 3. The governor shall cause the result of said election to be 
published, and shall transmit by mail, to the persons elected, cer- 
tificates of their election. 

4:. Meeting of electors— Mileage.] § L The electors, chosen a& 
aforesaid, shall meet at the seat of government of this state, at the 
time appointed by the laws of the United States, and give their 
votes in, in the manner therein provided, and perform such duties 
as are or may be required by law. Each elector shall receive for 
every twenty miles necessary travel in going to the seat of gov- 
ernment to give his vote, and returning to his residence, to be 
computed by the most usual route, the sum #f $3, to be paid on 
the warrant of the auditor, out of any money in the treasury not 
otherwise appropriated. 

5. "Vacancy filled.] § 5. In case any person declared duly 
elected an elector of president and vice-president of the United 
States shall fail to attend at the state house, at the seat of gov- 
ernment of this state, at or before the hour of twelve o'clock, at 
noon, of the day on which his vote is required to be given, it shaE 
be the duty of the elector or electors of president and vice-presi- 
dent, attending at the time and place, to appoint a person or per- 
sons to fill such vacancy : Provided, that should the person or 
persons chosen by the people, as aforesaid, arrive at the place 
aforesaid before the votes for president and vice-president are 
actually given, the person or persons appointed to fill such 
vacancy shall not act as elector of president and vice-president. 

TIME OP HOLDING ELECTIONS FOR CERTAIN OFFICERS. 

Section. 

6. Representatives in congress. 

7. Governor, lieutenant governor, secretary of state, auditor and at- 

torney general. 

8. Superintendent of public instruction. 

9. State treasurer. 



DIV. VIII.] TIME OF ELECTIONS FOE CERTAIN OFFICERS. 40] 

10. Judges of supreme court. 

11. Clerks of supreme court. 

12. Judges of circuit courts. 

13. Judges of superior court of Cook county. 

14. State senators. 

15. Members of the house of representatives. 

16. County judges and county clerks. 

17. Sheriffs and coroners. 

18. Clerks of circuit courts. 

19. Clerk of superior court of Cook county. 

20. Clerk of criminal court of Cook county. 

21. County treasurers. 

22. County treasurer ex-ojjieio assessor in counties not under township 

organization. 

23. County surveyors. 

24. County superintendent of schools. 

25. State's attorneys. 

26. State board of equalization. 

27. Recorder of deeds in counties of sixty thousand inhabitants. 

28. County commissioners in counties not under township organi- 

zation. 

6. § 6. Representatives in congress shall be elected on Tuesday 
next after the first Monday in November, in the year of our Lord 
1872, and every two years thereafter ; but if congress shall fix a 
different day, then such election shall be held on the day so fixed 
by congress. 

7. § 7. The governor, lieutenant governor, secretary of state, 
auditor of public accounts and attorney general shall be elected on 
Tuesday next after the first Monday of November, in the year of 
our Lord 1872, and every four years thereafter. [See Const., 
art. 5, § 3. 

8. § 8. The superintendent of public instruction shall be 
elected on Tuesday next after the first Monday of November, in 
the year of our Lord 1874, and every four years thereafter. [See 
Const., art. 5, § 3. 

9. § 9. The state treasurer shall be elected on Tuesday next 
after the first Monday of November, in the year of our Lord, 1872, 
and every two years thereafter. [See Const., art. 5, § 3. 

10. § 10, The judges of the supreme court shall hereafter be 
elected as follows, to-wit : In the first, second, third, sixth and 
seventh districts on the first Monday of June, in the year of our 
Lord 1879, and every nine years thereafter. In the fourth dis- 
trict, on the first Monday of June, in the year of our Lord, 1876, 
and every nine years thereafter. In the fifth district, on the first 
Monday of June, in the year of pur Lord 1873, and every nine 
years thereafter. [See Const., art. 6, § 6. 

11. § 11. A clerk of the supreme court in each grand division 
shall be elected on Tuesday next after the first Monday of 

26 



402 ELECTIONS. [DIY. VIII. 

November, in the year of our Lord, 1872, and every six years 
thereafter. [See Const., art. 6, § 10. 

12. § 12. The judges of the circuit court shall be elected on 
the first Monday of June, in the year of our Lord, 1873, and every 
six years thereafter. [See Const., art. 6, § 14. 

13. § 13. The judges of the superior court of Cook couuty 

shall be elected, as follows: One on Tuesday next after the first 
Monday of November, in the year of our Lord 1873, and every 
six years thereafter ; one on Tuesday next after the first Monday 
of November, in the year of our Lord 1875, and every six years 
thereafter ; and one on Tuesday next after the first Monday of 
November, in the year of our Lord 1877, and every six years 
thereafter. [As amended by act approved April 11, 1873 ; in 
force July 1, 1873. [See Const., art. 6, § 23. 

14. § 14. State senators shall be elected as follows, to-wit: 
Those in districts bearing even numbers shall be elected on Tues- 
day next after the first Monday of November, in the year of our 
Lord, 1872, and every four years thereafter. Those in districts 
bearing odd numbers shall be elected on Tuesday next after the 
first Monday of November, in the year of our Lord 1872, for the 
term of two years. And after that they shall be elected on Tues- 
day next after the first Monday of November, in the year of our 
Lord, 1874, and every four years thereafter. [See Const., art. 4, § 6. 

15. § 15. Members of the house of representatives shall be 
elected on Tuesday next after the first Monday of November, in 
the year of our Lord 1872, and every two years thereafter. [See 
Const., art. 4, § 7, 8. 

16. § 16. The county judges and county clerks shall be elected 
on Tuesday next after the first Monday of November, in the year 
of our Lord 1873, and every four years thereafter. [See Const., 
art. 6, § 18. See Eev. Stat., ch. 37, § 69.* 

17. § 17. The sheriffs and coroners shall be elected on Tues- 
day next after the first Monday of November, in the year of our 
Lord 1872, and every two years thereafter. [See Const., art. 
10, §8.* 

18. § 18. The clerks of the circuit court shall be elected on 
Tuesday next after the first Monday of November, in the year of 
our Lord 1872, and every four years thereafter. [See Const., art. 
10, § 8. 

19. § 19. The clerk of the superior court of Cook county shall 
be elected on Tuesday next after the first Monday of November, 
in the year of our Lord 1875, and every four years thereafter. 
[See Const., art. 6, §27.* 

20. § 20. The clerk of the criminal court of Cook county shall 

* Amended, 1881. See Appendix, p. 481. 



DIV. VIII.] TIME OF ELECTIONS FOR CERTAIN OFFICERS. 403 

be elected on Tuesday next after the first Monday of November, 
in the year of our Lord 1873, and every four years thereafter. 
[See Const., art. 6, § 27. 

21. § 21. The county treasurers shall be elected on Tuesday 
next after the first Monday of November, in the year of our Lord 
1873, and every two years thereafter. [See Const., art. 10, § 8.* 

22. County treasurer ex-officio collector — Fees. ] *§ 1. In 
counties not under township organization there shall be elected 
on Tuesday next after the first Monday of November, in the year 
of our Lord 1873, and every two years thereafter, a county treas- 
urer, who shall be eoc-qfficio the county assessor, and who shall 
receive all fees as treasurer and assessor as is provided by law, 
and who shall hold his office for two years, and until his succes- 
sor is elected and qualified. 

23. § 22. The county surveyors shall be elected on Tuesday 
next after the first Monday of November, in the year of our Lord 
1875, and every four years thereafter. [See Const., art. 10, § 8.* 

24. § 23. The county superintendents of schools shall be electad 
on Tuesday next after the first Monday of November, in the year 
of our Lord 1873, and every four years thereafter. * 

25. § 24 A state's attorney shall be elected in each county on 
Tuesday next after the first Monday of November, in the year of 
our Lord 1872, and every four years thereafter. [See Const., 
art. 6, § 22.* 

26. State board of equalization.] § 25. There shall be elected 
in each congressional district, on Tuesday next after the first 
Monday of November, in the year of our Lord 1872, and every 
four years thereafter, one elector, to serve as a member of the state 
board of equalization. [See " Bevenue," § 100-1. 

27. Recorders of deeds in certain counties.] § 26. In coun- 
ties having a population of sixty thousand or more, there shall 
be elected a recorder of deeds, on Tuesday next after the first 
Monday of November, in the year of our Lord 1872, and every 
four years thereafter. [See Const., art. 10, § 8. 

[§ 27 of this act, providing for the election of an assessor in 
counties not under township organization, is repealed by impli- 
cation. See § 22 of this chapter.] 

28. County commissioners.] § 28. In counties not under 
township organization there shall be elected on Tuesday next 
after the first Monday of November, in the year of our Lord 
1873, three officers, who shall be styled "The Board of County 
Commissioners," one of whom shall hold his office for one year, 

*An Act to consolidate the offices of county treasurer and county assessor in counties not under 
i township organization. [Approved May 2, 1873. In force July 1, 1873. L. 1873, p. 74 ] 
* Amended, 1881. See Appendix, p. 181. 



404: ELECTIONS. [DIV. YIIL.- 

one for two years, and one for three years, to be determined by 
lot; and every year thereafter, one such officer shall be elected 
in each of said counties, for the term of three years. See Cons.,, 
art. 10, § 6. 

ELECTION PRECINCTS. 

Section. 

29. In counties not under township organization. 

30. County board may change precincts. 

31. In counties under township organization. 

29. In counties not under township organization.] § 29. The 

election precincts established in counties not under township 
organization, before the taking effect of this act, shall remain 
until changed by the county board. 

30. Change of election precincts.] § 30. The county board 
of such counties may, from time to time, change the boundaries 
of election precincts, and may erect and establish one or more 
new election precincts, and may designate and change the places 
of holding elections. All general and special elections shall be 
held at the places so designated. 

31. § 31. In counties under township organization, each town 
shall constitute an election precinct, but the county board may 
divide any town into as many election districts as the conven- 
ience of the people may require, defining the same by distinct 
boundaries and numbers, and may, from time to time, designate 
the places at which elections shall be held. All general and 
special elections shall be held at the places so designated. 

JUDGES AND CLEKKS OF ELECTION. 

Section. 

32. In counties Dot under township organization. 

33. In counties under township organization. 

34. Notice of appointment. 

35. Term of office. 

36. Vacancies filled. 

37. Judges to appoint clerks. 

32. § 32. In counties not under township organization, the 

county board shall, annually, at its last regular session preced- 
ing the general election, appoint three capable and discreet elec- 
tors to act as judges of election in each election precinct, and 
may at any time fill vacancies. (2) 

33. § 33. In counties under township organization, where the 
county board shall have divided a town into several election dis- 

(2) A person who is a candidate at an election is not thereby disqualified as judge of" 
election. Opinion Att'y Geu. Cole, (Minn.), vol. 1, p. 449. 



3)iv. vin.] oath or judges and clerks of elections. 405 

tricts, it shall, at its last regular session preceding the general 
election, appoint three capable and discreet electors to act as 
judges of election in each election district in such town, and may 
at any time fill vacancies : Provided, that the supervisor, asses- 
sor and collector shall be designated as judges of election in the 
districts in which they respectively reside. 

34. Notice of appointment.] § 34. Immediately on the ap- 
pointment of such judges, the county clerk shall make out and 
deliver to the sheriff of the county a notice thereof, directed to 
each person so appointed, and the sheriff shall, within twenty 
days after the receipt of such notices, deliver the same to the 
several judges so appointed. 

35. Term of office.] § 35. The judges so appointed shall be 
and continue judges of all general and special elections held 
within their respective precincts or districts, until other judges 
shall be appointed in like manner. 

36. Yacancies filled.] § 36. If, at the time for the opening of 
any election, any person appointed or constituted a judge of 
election shall not be present, or will not act or take the oath to 
act in such capacity, the judge or judges present may appoint 
some other qualified elector to act in his place. If there be no 
judge of election present, or he refuses to act, such electors of 
the precinct or district as may then be present at the place of 
election, may fill the places of such judges by election from 
their number. The judges so appointed shall have the same 
power and be subject to the same penalties as other judges of 
election.(l) 

37. Clerks of election.] § 37. The judges of election shall 
choose two persons, having similar qualifications with themselves, 
to act as clerks of election, who may continue to act as such 
during the pleasure of the judges. 

oath of judges and clerks of election. 

Section. 

38. Oath. 

39. By whom oath administered. 

38. Oath.] § 38. Previous to any vote being taken, the judges 
and clerks of the election shall severally take an oath or affirma- 
tion, in the following form, to-wit : 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 

(1) The statute requiring the judges of election to appoint clerks is held to be 
directory. If no person can be procured to act in that capacity, the election is no to fail. The 
judees may perform the duty which ordinarily devolves upon the clerks. Peopk, v. Cook 4 Seld. 
wRL., 67. 



406 ELECTIONS. [DIV. VIIL- 



Illinois, and that I will faithfully discharge the duties of the office of 
judge of election (or clerk, as the case may be,) according to the best of 
my ability. 

39. By whom administered.] § 39. In case there shall be no 
judge or justice of the peace present at the opening of the elec- 
tion, or in case such judge or justice shall be appointed a judge 
or clerk of election, it shall be lawful for the judges of the elec- 
tion to administer the oath or affirmation to each other, and to 
the clerks of the election ; and the person administering such oath 
or affirmation, shall cause an entry thereof to be made and sub- 
scribed by him, and prefix to each poll book.(l) 

BALLOT BOXES AND POLL BOOKS. 
Section. 

40. Ballot boxes. 

41. Judges to keep ballot boxes, etc. 

42. Blanks, poll books, etc. 

4:0. Ballot boxes.] § 40. The county board shall provide a 
sufficient number of ballot boxes, with secure locks and keys, at ' 
the expense of the county, for the several precincts and districts. 
There shall be an opening in the lid of each box not larger than is 
sufficient to admit a single closed ballot to be inserted therein at 
one time, through which each ballot voted shall be put into the 
box. 

41. Judges to keep ballot boxes, etc.] § 41. The ballot boxes 
shall be delivered to and kept by the judges of election, and by 
them kept and delivered over to their successors. 

42. Blanks, poll books, etc.] § 42. The county clerk shall pro- 
vide, at the expense of the county, proper blanks, poll books and 
other necessary election blanks for each precinct and district in 
his county, and cause a suitable number thereof to be delivered 
to the judges of election, at least ten days before any election is 
to be held. 

CONSTABLES APPOINTED TO ATTEND ELECTIONS — OBDEB. 

Section. 

43. County board or judges may appoint. 

44. Special constable — Compensation of constables. 

45. Suppressing riots, etc. — Arrests. 

43. County board, or judges, may appoint.] § 43. The county 
board may appoint one or more constables to attend each place of 
holding elections, and preserve order during the election ; if no 

(1) The neglect of the judges or clerks of an election to take the prescribed oath 

does not vitiate an election ; neither does the irregular administration of the oath have that effect. 
An oath irregularly administered— for example, upon a book other than the Bible— the parties 
administering and taking it supposing it to be a Bible, is a valid oath. People v. Cook, 4 Seld. R. s 
67 See Taylor v. Taylor et al., 10 Minn. R., 107. 



DIV. VIII.] NOTICE OF ELECTION. 407 

constable is appointed by the county board to attend any place of 
holding election, or if others shall be necessary to preserve order, 
the judges of election may appoint one or more constables for 
that purpose. 

44. Special constable— Compensation of constables.] § 44. The 
judges of election may appoint any suitable person to act as a 
special constable during the election. Constables serving at such 
election shall be paid out of the county treasury, not exceeding $2 
per day for each days's service. 

45. Suppressing riot, etc.— Arrest.] § 45. Any constable at- 
tending such election may call to his aid a sufficient number of 
citizens to arrest any disorderly person or suppress any riot or 
disorder during the election. Whoever conducts himself in a 
riotous or disorderly manner at any election, and persists in such 
conduct after being warned to desist, may be arrested without 
warrant. 

NOTICE OP ELECTION. 
Section. 

46. Manner of giving notice. 

47. Sheriff or supervisor to post. 

46. Manner of giving notice.] § 46. At least thirty days previ- 
ous to any general election, and at least twenty days previous to 
any special election, except in cases otherwise provided for, the 
county clerk, in counties not under township organization, shall 
make out and deliver to the sheriff of his county, or in counties 
under township organization to the several supervisors of his 
county, three notices thereof for each precinct or district in which 
the election in such county is to be held. The notice may be 
substantially as follows :(1) 

Notice is hereby given, that on (give the date), at (give the place of 
holding the election and the name of the precinct or district), in the 
county of (name of county), an election will be held for (give the title of 
the several offices to be tilled), which election will be opened at eight 
o'clock in the morning and continued open until seven o'clock in the after- 
noon of that day. 

Dated at , this day of , in the year of our Lord one thou- 
sand eight hundred and . 

A. B., County Clerk. 

"Where the judges and clerics of an election act under color of office, having been 
duly appointed, that is sufficient to constitute them officers de facto, and in such case it is imma- 
terial, so far as the validity of their election returns are concerned, whether they were sworn at 
the election or not. The law, in such case, presumes them to have been well appointed and 
qualified. The People ex rel. etc. v. Hilliard, 29 111. R., 423. 

If the officers of election fail to perform their duty, the law provides a penalty 
but the election is not necessarily rendered void. Taylor v. Taylor et al., 10 Minn. R., 107. 



(1) If an election be held, without necessity, at a different place from that i 
nated by law, the entire poll must be rejected. Chadwick v. Melvin, Leading Cases on Elections, 
(Brightley) 251. 

On the subject of notice of elections, see ante p. 68, note " Township Organization Act" 



408 ELECTIONS. [DIV. VIII. 



47. Sheriff or supervisor to post.] § 47. The said sheriff or 
supervisor to whom the notices are delivered, shall post 
up, in three of the most public places in each precinct or 
district, the three notices therefor at least fifteen days before the 
time of holding a general election, and at least eight days before 
the time of holding a special election. 

CONDUCTING ELECTIONS — EETUKNS. 

Section. 

48. Time of opening and closing polls. 

49. Proclamation. 

50. Ballot box publicly exhibited, etc. — Locked— Key. 

51. Poll lists, how kept. 

52. Ballots. 

53. Form of ballot. 

54. Form of cumulative ballot. 

55. Manner of receiving and depositing ballot. 

56. No adjournment or recess. 

57. Canvass of votes. 

58. Irregular ballots. 

59. Ballots strung, returned and kept — When destroyed. 

60. Examination of ballots in contested election. 

61. Form of return. 

62. Returns to be delivered to county clerk — canvass, etc. 

63. Compensation of judges and clerks. 

64. Challengers. 

48. Time of opening and closing polls.] § 48. The polls shall 
be opened at the hour of eight o'clock in the morning and con- 
tinued open until seven o'clock in the afternoon of the same day, 
at which time the polls shall be closed ; but if the judges shall 
not attend at the hour of eight o'clock in the morning, or if it 
shall be necessary for the electors present to appoint judges to 
conduct the election, as hereinbefore prescribed, the polls may, 
in that case, be opened at any hour before the time for closing 
the same shall arrive, as the case may require. (1) 

(1) Although, the law may direct that the polls shall he closed at a certain hou 
specified, and this question is in issue, unless it be made to appear that votes were cast after that 
hour, which would change the result, the fact that the polls were kept open after that hour 
would not render the election void. Piatt v. The People, 29 111. R., 72. 

It is held in New York that the provision as to the time of opening and closing the polls is 
directory ; that, for instance, should the inspectors or judges, being misled by a defective time- 
piece, close the polls a few minutes before a particular hour directed by the statute or receive a 
lew votes after that hour, this will not render the election void. People v. Cook, 4 Seld. R., 92. 

A court of chancery has no power to prevent the holding of an election of 
officers, upon the alleged ground of a want of authority to hold such an election, the remedy 
therefor being complete at law by writ of quo warranto. The People ex rel. v. City of Galesburg, 48 
111. R., 485 ; Walton et al. v. Leveling et al., 61 111. R., 201. 

"While a court of chancery will not interfere to determine which of two per- 
sons has been elected to office, or try the rights of parties to hold an office, yet, in case of an 
election upon the question of the removal of a county seat, which is claimed to have resulted in 
favor of removal, it is alleged that such was not the result, by reason or the election being ille- 
gally held, or the vote not being a fair one, a court of chancery will entertain jurisdiction at the 
instance of those impeaching the election, to determine where the county seat is, although that 
inquiry may incidentally involve the question, whether the vote had been fairly taken, and if 
fraud had intervened therein to purge the polls. Boren v. Smith et al, 47 111. R., 482. Same doc- 
trine held in The People ex rel. v. Wiant, 48 111. R., 263. 



-DIY. VIII. ] CONDUCTING ELECTIONS — RETURNS. 409 

49. Proclamation.] § 49. Upon opening the polls one of the 
clerks or judges of election shall make proclamation of the same, 
-and at least thirty minutes before the closing of the polls procla- 
mation shall be made in like manner that the polls will be closed 
iu half an hour.(l) 

50. Ballot box publicly exhibited, etc.— Locked— Keys.] § 50. 

Before any ballot shall be deposited in the ballot box, the ballot 
box shall be publicly opened and exhibited, and the judges and 
clerks shall see that no ballot is in such box ; after which the 
box shall be locked and the key delivered to one of the judges, 
and shall not be again opened until the close of the polls. 

51. Poll lists — How kept. J § 51. Each clerk of the election 
shall keep a poll list, which shall contain a column headed "num- 
ber," and another headed "names of voters." The name of each 
elector voting shall be entered upon each of the poll books by 
the clerks, in regular succession, under the proper headings, and 
the number of such voter placed opposite his name in the col- 
umn headed u number."(2) 

52. Ballots.] § 52. The manner of voting shall be by ballot. 
The ballot shall be printed or written, or partly printed and 
partly written, upon plain paper, with the name of each candi- 
date voted for, and the title of the offices. When the ballot is 
printed, the same shall be printed upon plain paper, in plain 
type, in straight lines, with a blank space below each name, of a 
width not less than equal to the width of the line in which the 
name is printed. (3) [See Const., art. 7, §2. 

Where an election held in a town was void, the legislature has no power uuder the 
■constitution, to pass a law making: the same valid. Marshall et al. v. SUliman et al„ 61 111. R., 218. 

(1) The usual form of proclamation of opening and closing the polls is as fol- 
lows: 

Hear ye : hear ye : hear ye : the polls of this election are now open ; or, the polls of this election 
will he closed in thirty minutes. 

(2) Neither a heading nor the signature of the inspectors or clerks were re- 
required to make the poll list admissible, to prove that a person voted. People v. Pease, 27 N. Y. 
.(18 Smith) R., 45. 

Inspectors or judges of elections are merely ministerial officers, and their action 
can be reviewed by the courts. People v. Pease, 27 N. Y. (13 Smith) R., 45. 

Where the provisions of the election law have been entirely disregarded by the officers, and 
their conduct has been such as to render their returns utterly unworthy of credit, the entire poll 
will be rejected. But even in such case, legal votes proved to have been actually polled, must 
be computed. Littlefield v. Green, 1 Legal News, 330. See 1 Brewster (Penn.), 60. 

(3) See Const., Art. VII, Sec. 2. 

A single piece of paper, cast as a ballot, and containing the name of a candi- 
date more than once, should be counted as one vote, and not rejected as illegally thrown. People 
V. Holden, 26 Cal. R., 123. 

Ballots containing a greater number of names for an officer than the number to 
be elected cannot be canvassed but must be rejected. People v. Adams, 9 Wend. R., 333. 
If a ballot contains the names o* two persons for the same office, it is bad as 

to both ; but such a ballot cannot be rejected as to candidates for other offices regularly named 
on the same ballot. Carpenter v. Ely, 4 Wis. R., 420. 

In case of questions arising upon a ballot as to the person or officer voted for 
the intention of the voter should control, and effect to be given thereto. If a ballot designate an 



410 ELECTIONS. [div. vni„ 

53. Form of ballot.] § 53. The names of all candidates for 
which the elector intends to vote shall be written or printed upon, 
the same ballot, and the office to which he desires each to be 
elected shall be designated upon the ballot. 

54. Form of cumulative ballot.] § 54. In voting for repre- 
sentatives to the general assembly, if the voter intends to give 
more than one vote to any candidate, he shall express his inten- 
tion on the face of the ballot, in words or figures, which may be 
done in either of the following forms : A B, C D,EF, which 
shall be held to mean one vote for each candidate named ; or A 
B H votes, CD1| votes ; or A B 2 votes, GDI vote ; or A B 3 
votes. [See Const., art. 4, g 7, 8. 

55. Manner of receiving and depositing ballot.] § 55. The 
ballot shall be folded by the voter and delivered to one of the 
judges of election ; and if the judges be satisfied that the person 
offering the vote is a legal voter, the clerks of election shall enter 
the name of the voter, and his number, under the proper heading 
in the poll books, and the judges shall endorse on the back of the 
ticket offered the number corresponding with the number of the 
voter on the poll books, and shall immediately put the ticket into 
the ballot box.(l) 

officer as " police justice," it should be taken as intending " police magistrate." The People ex reL . 
etc. v. Matteson, 17 111. R., 167. 

The name of the person for whom the elector intends to vote should be written 
in full upon his ballot. It is held in Michigan, under the like provisions as in the text, that & . 
ballot for J. A. Dyer cannot be counted for James A. Dyer ; that such a ballot does not contain 
the name of the person intended to be voted for, but merely the initial letters; and no evidence 
is admissible to show that such a ballot was intended for James A Dyer. But when, however, 
the designation of an individual on a ballot is by an abbreviation sanctioned by common usage, 
and universally understood, the ballot may be counted for the person for whom it was intended 
Thus, a vote for Jas. A. Dyer may be counted for James A. Dyer. A slight error in the spell- 
ing of a name on a ballot, it is presumed would not prevent a ballot from being counted for the 
person for whom it was evidently intended. People v. Tisdale, 1 Dougl. (Mich.) R., 50; People v. 
Biggin*, 3 Mich. R.. 233; Carpenter v. Ely, 4 Wis. R., 420. 

Ballots cast for Michael Finegan, being of the same sound, it was held should have been > 
counted for Michael Pinnegan, the person intended. Pinnegan v. Mayworm, 5 Mich. R., 146. 

Under the law authorizing the election of two court commissioners, an election was held, but 
it was conducted, in all respects, as if only one was to be chosen; two persons were opposing- 
candidates, and each elector voted for one of the two, but in no instance did a ballot contain 
more than one name for this office. It was held that only the one receiving the higriest number 
of votes was chosen, and as to the other there was a failure to elect People v. Commissioners of 
Kent Co., 11 Mich. R., 111. 

Ballots upon paper tinged with blue, which has ruled lines, not placed there 
as marks to distinguish the ballots are upon white paper within the meaning of the statute. Peo- 
ple ex reL Brewster and Jones v. Kilduff, 15 111. R., 500. 

(1) Inspectors of election have no authority, on the assertion of one who claims • 
to have voted in the wrong precinct to withdraw from the ballot box and destroy a ballot which 
he identifies as the one, or similar to the one, he had voted. Barbaugh v. Gcott, 33 Mich. R., 241. 

A party -who votes in the -wrong precinct and upon discovering his mistake 
has requested and procured the inspectors to withdraw and cancel a ballot such as he asserted 
was his, has no right afterwards to vote again in his proper precinct; and his second vote is ille- 
gal. Harbaugh v. Gcott, 33 Mich. R., 241. 

Held in Missouri that, if the judges of election do not cause to be placed on each ballot the 
number corresponding to the number of the voter offering it, it cannot be counted. Ledbetter v. 
Ball, 62 Mo. R., 422. 

Held in Minnesota, that the section of the act providing for the numbering of tickets to cor- 
respond wtth the number of voters upon the poll list, is in violation of Sec. 6, Art. 7, of the con- 
stitution of the state, declaring that all elections shall be by ballot. Brisbin v. Geary etal., Sup* 
Ct., Minn., June 25, 1879. 



DIV. Vni.] CONDUCTING ELECTIONS — RETURNS. 411 

56. No adjournment or recess.] § 56. After the opening of the 
polls no adjournment shall be had, nor shall any recess be taken, 
until all the votes cast at such election shall have been counted 
and the result publicly announced.(l) 

57. Canvass of votes.] § 57. Immediately upon closing the 
polls, the judges shall proceed to canvass the votes polled. They 
shall first count the whole number of ballots in the box. If the 
ballots shall be found to exceed the number of names entered on 
each of the poll lists, they shall reject the ballots, if any be found 
upon which no number is marked ; if the number of ballots still 
exceeds the number of names entered on each of the poll lists,, 
they shall be replaced in the box, and the box closed and well 
shaken and again opened, and one of the judges shall publicly 
draw out and destroy so many ballots, unopened, as shall be equal 
to such excess ; and the ballots or poll lists agreeing, or being 
made to agree, the board shall proceed to count, and estimate 
and publish the votes ; and when the judges of election shall 
open and read the tickets, each clerk shall carefully mark down 
upon the tally-list the votes each candidate receives, in a separate 
column prepared for that purpose, with the name of such candi- 
date at the head of such column, and the office, designated by 
the votes, such candidate shall fill.(2) 

58. Irregular ballots.] § 58. If more persons are designated 
for any office than there are candidates to be elected, or ii more 
votes or parts of votes are designated on any ballot for represen- 
tatives than the voter is entitled to cast, such part of the ticket 
shall not be counted for either of the candidates. 

59. Ballots strung and returned— When destroyed.] § 59. All 

the ballots counted by the judges of election shall, after being 
read, be strung upon a strong thread or twine, in the order in 
which they have been read, and shall then be carefully enveloped 
and sealed up by the judges, who shall direct the same to the 
officer to whom by law they are required to return the poll books,, 
and shall be delivered, together with the poll books, to such offi- 
cer, who shall carefully preserve said ballots for six months, and 
at the expiration of that time shall destroy them by burning, 

(1) Where the judges of an election took a recess of an hour for dinner, and it 
was not for any improper purpose and no fraud or wong of any sort was committed, this was 
held not sufficient grounds for rejecting the entire vote of the township. The Board of Supervi- 
sors v. The People, ex rel, 65 111. R., 360. 

(2) The ballots cast at an election are better evidence than the tally list made 
from them of the number of votes. People v. Holden, 28 Cal. R., 123. 

Where one Joseph Talkington was a candidate for constable, and ballots were cast for " Talk- 
ington," held that they should be counted for Joseph Talkington. Talkington v. Turner, 71 111. 
R„ 235. 

A numbered ballot should not be rejected in counting votes at an election, 
merely because an unnumbered ballot is found folded within the same. Dale v. Irwin, 78 111. 
R., 170. 



412 ELECTIONS. [CIV. Y111 ' 

without the package being previously opened : Provided, if any 
contest of election shall be pending at such time in which such 
ballots may be required as evidence, the same shall not be de- 
stroyed till such contest is finally determined. 

60. Examination of ballot in contested election.] § 60. In 

.all cases of contested election, the parties contesting the same 
shall have the right to have the said package of ballots opened, 
and said ballots referred to by witnesses for the purpose of such 
contest. But said ballots shall only be so examined and referred 
to in the presence of the officer having the custody thereof. 

61. Form of return.] § 61. When the votes shall have been 
examined and counted, the clerks shall set down in their poll 
books the name of every person voted for, written at full length, 
the office for which such person received such votes, and the 
number he did receive the number being expressed in words at 
full length ; such entry to be made, as nearly as circumstances will 
admit, in the following form, to- wit : 

At an election held at , in the county of , and state of Illi- 
nois, on the day , in the year of our Lord one thousand eight 

hundred and , the following named persons received the number of 

votes annexed to their respective names, for the following described offi- 
ces, to-wit: (name of candidate) had (number of votes) for (title of office), 
(and in the same manner for any other person voted for.) Certified by us. 

A. B.,} 

C. D., > Judges of election. 

E.F.J 
Attest : &.TL. , J Clerks of elecfiont 

62. Returns to be delivered to county clerk — canvass, etc.] 

§ 62. Such certificate, together with one of the lists of voters and 
one of the tally papers, having been carefully enveloped and 
sealed up, shall be put into the hands of one of the judges or 
board of election, who shall, within four days thereafter, deliver 
the same to the county clerk or his deputy, at the office of said 
county clerk ; and when received, such clerk or deputy shall pro- 
ceed to open, canvass and publish the return from each precinct 
or election district, as provided by law.(l) [See § 71. 

63. Compensation of judges and clerks.] §63. The judges and 
clerks of election shall be allowed the sum of $3 each per day 
for their services in attending each election, and the judge who 
carries the said returns to the county clerk shall also receive five 
cents per mile, each way. [See § 75. 

(1) If votes are cast by duly qualified electors, on a lawful occasion, and at a 

proper place, their effect cannot be defeated by reason of mere official delinquency of the judges 
in not transmitting them to the county clerk. " Bour/and v. Hildreth, 26 Cal. R., 161. 

And. the omission of the judges of election to send a poll hook to the county 
■clerk, as required by statute, will not cause the rejection of the return from that precinct. 
'.{Deady, J., dissenting,) Day v. Kent, Oregon R., 123. 



DIV. VIII.] QUALIFICATION OF VOTERS. 413 

64. Challengers.] § 64 The judges of election shall allow 
at least one, and not more than two legal voters of each party to 
the contest, to be chosen by the parties respectively, into the 
room where the election is held, to act as challengers of voters 
at such election; and such challengers may remain with the 
board of election until the votes are all canvassed and the result 
declared. 

QUALIFICATION OF VOTEKS. 

Section. 

65. Who may vote. 

66. What constitutes residence. 

67. Affidavit of qualification. 
' 68. Affidavit of witness. 

69. Who may adminster oath. 

70. Convicts — Disqualification. 

65. Who may vote.] § 65. Every person having resided in 
this state one year, in the county ninety days, and in the elec- 
tion district thirty days next preceding any election therein, who 
was an elector in this state on the first day of April, in the year 
of our Lord 1848, or obtained a certificate of naturalization be- 
fore any court of record in this state prior to the first day of 
January, in the year of our Lord 1870, or who shall be a male 
citizen of the United States, above the age of twenty-one years, 
shall be entitled to vote at such election. (1) [See Const., art. 
7, §1. 

(1) See Const., Art. VII, Sec. 1. 

Each, state has the undoubted, right to prescribe the qualifications of its own voters 
In the absence of some provision to that effect, the act of naturalization would not of itself con- 
fer on the person naturalized the right to exercise the elective franchise. The qualification of a 
voter at a Congressional election depends on the law of the State in which the elective franchise 
is exercised, and is dependent on the municipal regulations ot the. State. Spragins v. Houghton, 
2 Scam. R,. 395. Former decisions to the foregoing effect, must of course be taken subject to the 
provisions of the 15th amendment to the Constitution of the United States. 

Unless the legislature shall make citizenship an indispensible qualification to the enjoyment 
of the elective franchise, and the Constitution clearly admits of the exercise oi that power by 
that body, the supreme court cannot add such a prerequisite by construction. Spragins v. Rough- 
ton, 2 Scam. E, , 409. 

The undergraduates of a college, who are free from parental control, and regard 
the place where the college is situated as their home, having no other home to return to in case 
of sickness or domestic affliction, are as much entitled to vote as any other resident of the town 
pursuing his usual avocation. It is pro hac vice, the home of such students. Their permanent 
abode, in the sense of the statute. Dale v. Irwin, 78 111. R., 170. 

Aliens who were minors on the first day of April, 1848, were not electors, and 
consequently are made voters by the constitution of 1870, certificates of naturalization granted 
prior to Jan. 1, 1870, entitled the parties receiving the same to vote, but not their minor sons after 
beeoming of age. City of Beardstown v. City of Virginia, 76 111. K,., 34. 

Where a person of foreign birth, who was a minor when he came to this 
country, testified that he had never been naturalized, and did not know that his father had 
been, it was held, that this afiorded prima facie that such person was not entitiedto vote. Beards- 
town et al. v. Virginia et at., 76 111. E.., 34. 

Under the act of Congress of 1802, conferring jurisdiction upon certain courts for the purpose 
of naturalization, only courts of record for general and not for special purposes, were intended 
to be embraced within its provisions. "The Marine Court of the city of New York" is not a 
court of record within the meaning of the act of Congress conferring jurisdiction upon courts of 
record to admit aliens to citizenship ; and hence a person so admitted by an order of that court 
does not become a qualified elector, and cannot maintain an action, under the act of 1849, for 
rejection of his vote. Mills et al. v. McCabe, 44 111. R., 194. 



414 elections. [diy. vrn. 

66. Residence.] § 6Q. A permanent abode is necessary to con- 
stitute a residence within the meaning of the preceding section.(l) 

The question whether the person offering to vote is a naturalized foreigner 

or an inhabitant, and entitled to vote, the judges of election have no right to investigate, under 
the existing laws. If such person takes the oath prescribed in the law, the duty is imperative 
upon the judges to receive his vote unless the oath is proved to be false. Spragins v. Houghton, 
2 Scam. R., 416. If, however, the judge should of his own knowledge know the oath to be false, 
he would not be liable to the penalty under the law should he refuse to receive the vote for 
that reason. Mills et al. v. McCabe, 44 111. R., 194. 

(1) The "permanent abode" prescribed by the statutes as the criterion of the 

residence required to constitute a legal voter, means nothing more than a domicil, a home, which 
the party is at liberty to leave as interest or whim may dictate, but without any present intention 
to change it. Dale v. Irwin, 78 111. R., 170. 

The term inhabitant is derived from the Latin habito, and signifies live in, to dwell in ; and is 
applied exclusively to one who lives in a place, and has there a fixed and legal settlement The 
residence, however, is to be bona fide, and not casual or temporal. Spragins v. Houghton, 2 Scam. 
R., 396. 

The residence is a question of intention from all the facts and circumstances in 
each case. Kitchell v. Burgwin et ux., 21 111. R., 44 ; Ives v. Mills, 37 111. R.. 75 ; Waltus v. The Peovle 
21 111. R., 174, 178. p ' 

Residence and habitancy are generally synonymous. A residence is different 
from a domicil, although it is a matter of great importance to determine the place of domicil 
Residence indicates permanency of occupation, as distinct from lodging, or boarding, or tempo- 
rary occupation, but does not include so much as domicil, which requires an intention con- 
tinued with residence. Bouv Law Diet., "Residence." 

A domicil may be denned " a residence at a particular place, accompanied with 
positive or presumptive proof of continuing it an unlimited time," and is a conclusion of law on 
an extended view ot facts and circumstances. Orier v. 0' Daniel, 1 Binn. R., 352. 

A resident is a person coming into a place with an intention to establish his domicil 
or permanent residence, and actually executing that intention by taking a home or lodging 
opening a store or the like. United Slates v. The Penelope, 2 Peters Adm. R , Dec. 450. 

Residence is a question of intention. By a removal out of the State, without an in- 
tention permanently to reside elsewhere, a person will not lose his residence, nor will he acquire 
one by a mere intention to remove permanently, not followed by actual removal. The fact of 
voting at a particular place is very strong evidence of the voter's intention to claim a domicil at 
the place of voting. McCrary's Election Laws, § 34. Casey's Case, 1 Ash. R.. 126. But a person 
having a permanent home in one town within the state, and being a legal voter in such town 
is not necessarily disqualified by a temporary absence in another town, and being there ad- 
mitted to vote. Lincoln v. Hapgood, 11 Mass. R,. 350. McCrary's Election Laws, g 34. 

To effect a change of domicil there must be intention and act united. 2 Kent 
Com., 43; Crawford v. Wilson, 4 Barb. R., 504. It is not enough that one intends to change it and 
believes he has done in law what amounts to a change. The intent and fact must concur ' and 
his opinion cannot produce the result. Chainev. Wilson, 8 Abbott's Pr., 78; Smith v. People ezrel. 
44 111. R., 22. 

If a person goes out of a State, county or town, for a particular purpose, 
and does not take up a permanent residence elsewhere, he cannot be considered as having re- 
moved from the State, county or town, so as to affect his domicil and inhabitancy. Sears v. City 
of Boston, 1 Mete. R., 250 ; Sacket's Case, 1 Mass. R., 58 ; Abington v. Boston, 4 Mass. R., 312. 

The temporary absence of a person or his family though extending over a series 
of years, does not necessarily, without regard to his intentions, make him lose his residence or 
deprive him of his rights as an elector. Harbaugh v. Cicott, 33 Mich. R.. 241. 

A man's domicil is not changed by an absence for a temporary purpose, with or without his 
family. Cadwalader v. Howell, 3 Harr. R., 138 ; Stale v. Judge, 13 Al. R., 805. 

A person's home or domicil is his habitation fixed in any place, without any present intention 
of removing therefrom. Putnam v. Johnson, 10 Mass. R., 488. 

A domical once fixed -will continue not-withstanding the absence of the party 
until a new domicil is acquired. Jennison v. Hapgood, 10 Pick. R., 77. 

A domicil once acquired is presumed to continue until a new one is obtained, in fact and bv 
intention. Glover v. Glover, 18 Ala. R., 365. 

Unless one's change of domicil is complete and final, it does not constitute an 
abandonment of one's country. Hardy v. DeLeon, 6 Texas R., 211; Brown y. Smith 11 Ens Law 
and Eq„ 6 ; Leech v. Pillsbury, 15 N. Hamp. R., 137. 6 

Every person has a domicil of origin, which he retains until he acquires another, and the one 
thus acquired is in like manner retained. Thorndike v. City of Boston, 1 Mete. R. 242 ; Kilbum v 
Benned, 3 Mete. R., 199. 

A person having a legal settlement in one place, that settlement coutinues until 
another is acquired m the State. A settlement in another .State or county will not change that 
acquired in this State, if he returns to it. Payne v. Town of Dunham, 29 111. R., 129. 



<DIV. VIII.] QUALIFICATION OF VOTERS. 415 

67. Affidavit of qualification.] §67. Whenever, at any gen- 
eral or special election, in any precinct, district, city, village, 
town or ward, any person offering to vote is not personally known 
to the judges of election to have the qualifications mentioned 
in the two preceding sections, if his vote is challenged by a legal 
voter at such election, he shall make and subscribe an affidavit, 
in the following form, which shall be retained by the judges of 
election, and returned by them with the poll books : 

State of Illinois, ) aa 

County of Cook, j" ss ' 

I, , do solemnly swear (or affirm) that I am a citizen of the United 

States, (or, "that I was an elector on the first day of April, A. D. 1848," 
or, "that I obtained a certificate of naturalization before a court of record 
in this state prior to the first day of January, A. D. 1870," as the case may 
be,) that I have resided in this sfate one year, in this county ninety days, 
and in this election district thirty days next preceding this election ; that 
I now reside at (here give the particular house or place of residence, and, 
if in a town or city, the street and number,) in this election district; that 
I am twenty-one years of age, and have not voted at this election ; so help 
me God, (or, "this I do solemnly and sincerely affirm," as the case 
may be) . 

Subscribed and sworn to before me, this day of , A. D. 18—. 

68. Affidavit of witness.> § 68. In addition to such an affida- 
vit, the person so challenged shall produce a witness, personally 
known to the judges of election, and resident in the precinct (or 
district,) or who shall be proved by some legal voter of such 
precinct or district, known to the judges to be such, who shall 
take the oath following, viz : 

I do solemnly swear (or affirm) that I am a resident of this election pre- 
cinct (or district,) and entitled to vote at this election, and that I have 
been a resident of this state for one year last passed, and am well acquainted 
with the person whose vote is now offered ; that he is an actual and bona 
fide resident of this election precinct (or district), and has resided herein 
thirty days, and, as I verily believe, in this county ninety days, and in 
this state one year next preceding this election. [As amended by act ap- 
proved May 24, 1877. 

69. Who may administer oath.] § 69. The oath, in each case, 
may be administered by either of the judges of election, or by 
any officer, resident in the precinct or district, authorized by law 
to administer oaths. 

70. Convicts— Disqualification.] § 70. No person who has 
been legally convicted of any crime, the punishment of which is 
confinement in penitentiary, shall be permitted to vote at any 
■election, unless he shall be restored to the right to vote by par- 
don. [See Const., art. 7, § 7. 



To constitute a change of residence from one election district to another, there must be an ac- 
tual removal McDaniel's Case, 3 Penn. Law Journal, 310. 

A party does not forfeit liis residence in a precinct in which he was a voter merely 
by becoming a county charge and an inmate of the poor house. Dale v. Irwin, 78 111. R., 170. 



416 ELECTIONS. [DIV. VITL 



CANVASSING VOTES — CERTIFICATE OF ELECTION. 

Section. 

71. Canvassing votes — Abstracts. 

72. Certificates of election. 

73. Tie vote — Notice to candidates. 

74. Drawing lot — Certificate. 

75. Compensation of judges and clerks. 

76. Abstracts sent to secretary of state. 

77. How abstracts sent. 

78. Canvass by secretary of state, etc. — Commissions — Proclamation. 

71. Canvassing votes— Abstracts.] § 71. Within seven days* 
after the close of the election, the county clerks of the respective 
counties, with the assistance of two justices of the peace of the 
county, shall open the returns and make abstracts of the votes 
in the following manner, as the case may require : Of votes for 
governor and lieutenant governor, on one sheet ; of votes for other 
state officers, on another sheet ; of votes for presidential electors^ 
on another sheet ; of votes for representatives to congress, on an- 
other sheet ; of votes for judges of the supreme court, on another 
sheet ; of votes for clerks of the supreme court, on another sheet ;. 
of votes for judges of the circuit court, on another sheet ; of 
votes for senators and representatives to the general assembly, 
on another sheet ; of votes for members of the state board of 
equalization, on another sheet ; of votes for county officers, on 
another sheet. The foregoing abstracts shall be preserved by the 
county clerk in his office. (1) 

(1) A statement of the number of votes given at an election for the respective 
candidates, required to be made out and filed by the board of county canvassers, is prima facie 
evidence only of the facts stated in it. The county canvass may be corrected, in a proceeding. 
for that purpose, by the township canvassers, and the latter by the ballots themselves. The de- 
termination of the board of county canvassers of the persons elected is prima facie evidence only 
of their election. A party may go behind the canvass to the ballots to show the number of votes- 
cast for him. The duties of the board of canvassers being wholly ministerial. So held in Mich- 
igan. People v. Vancleve, 1 Mich. R., 362. See also Attorney General ex rel. Carpenter v. Ely, 4 Wis. 
R., 420. 

When the -vote of an election district is rejected hy the county canvassers,, 
because no poll-list with the oath of the judges of- election accompanied the statement of voters 
made up and returned to the proper officers, the statement being regular in all other respects, and 
delivered by and to the proper officers within the time prescribed by law, the testimony of the 
town clerk, in a proceeding testing the regularity of the election, is competent to show by the 
records kept in his office, that the election was regularly notified and conducted, and that 
the votes were ascertained and canvassed according to law, and also to show the number of 
votes cast for the different candidates. The chairman of the town board, whose vote is rejected 
for the above reasons, is a proper witness to show that he acted as one of the judges of election,/ 
that the judges were duly sworn before the polls were opened, and that the election was con- 
ducted according to the statute. Attorney General ex rel. Carpenter v. Ely, 1 Wis. R., 420. 

Although the person who received the greatest number of votes for a particular 
office is ineligible to that office, such votes are not thereby a nullity, but should be counted by the* 
canvassers ; and the person who received a less number of votes in such case, although eligible, 
can not be regarded as elected. Dunning ex rel. etc. v. Giles, 1 Chand. (Wis.) R., 112. Off ex rel. etc. 
V. Smith, 14 Wis. R., 497. 

The county canvassers have no power not expressly given them by law. They 
must perform their duties precisely as prescribed by the statute, and can not go beyond it. And 
this relates to State and town canvassers. Breshford ex rel. etc. v. Bruston, 4 Wis. R., 567. Can- 
vassers are mere ministerial officers ; it is their duty simply to cast up the votes and determine 
the result ; they have no judicial power. State v. Seers, 44 Mo. R., 223. 



DIV. VIII. ] CERTIFICATE OF ELECTION. ±yt 



72. Certificates of election.] § 72. The county clerk shall 
make out a certificate oi election to each of the persons haW 
the highest number of votes, for the several county offices 
and deliver such certificate to the person entitled to it, on his 
application. (1) ' 

result of the election. Taylo^fiy^ "S a? iS '^ he ^ c ^^^P^a facie eyidence of the 

come by the party who denies such vigtit. T^Uo^y^l! 1 Oregon R °ST' and muy be 0Vei " 
of^e eScta^^^^ oW declare the result 

not pass upon the qualification of voters nor decide w?> ?t h ? , , ?£» n k the elec i 10 ^ The y d o 
ref. etc. v. JTfldMj, 15 111. R 492 Indeed Kt !w Dallots shall be counted. TAe People ex 
merely ministerial, a nd~as such, ^lUblr J^SSlod^J S?iSS ^S**- 1 ?^ ° ffi ^ of can passer is 
with no discretionary powers. They are to oSn thp£n O ™ S that these officers are clothed 
appear, and the clerk Is to de liver F certificate ? o ^ P & ft 1 ? ke / b8t,acte , ofthe votes as they 
number of votes. They are not alio wad to refect- an v S™ S,^ 011 ha £ ng the M S»est 
on their face, they are made in compliance with thfllw ^ p^ de Up °, n , their validity, if 
111. R 423; People v. Vancleve, 1 Mich E ?, 362 A different rnle Coffin 6 ? ^w^ V * ^ ard ' 29 
gatuto adm ltt ing of a different construction. %~<^^^^ 

POwt e w rtl,Tco°un^^ »oar d , possess equal 

W L ^tn?f» 

r~5r^^^ and declared the 

sion by making a different determinaS &My aZuv^N yTT5? reV6rSe their deci " 

JS^SMiSffa^ b y the 

«fc. v. Billiard, 29 111. R., 414. operate to disiianchise the voters. The People ex rel. 

the canvassing boards. Attorney General J rel Carpenter y 1^ 4 \vis r ^ omissi ^« of 

Ofth h eVoa!d a of^ fact of the declaration 

the office will vest; the authority right find S3 werT of offi^ n il I ^ ad? ' t ^ Ugh ille ^ al catls es, 
and not from the returns. The People ex rSe^y^ilduff^f^ T ^ 2 lrom the electi on, 

pSct^f^ a particular 

Virginia, 76 111. R., 35. 8 e Ietum tr °m such precinct. Bearddown v 

S»£rt«^^ 

ery to him of the certificate of election asthe SS£2S3^S5S te S £ ar< ? to . com P el the deliv- 

rd. etc. v. HUliard, 29 111. R., 413. CUL1UU ' as me P nma J acie evidence of his election. The People ex 

y^^ n ^SS^^^^ r^^ r^^7 f ^T ctio "' a Doa ^ of can- 
held, neither in terms or by im^S^ScS^SflJ^SS^iSy u > nder ^ which ^ election was 
the court which require it to take judicial coSanS Tlnd S d J«^ th ^ are no facts hQt »™ 
Dickey et al. v. Eeid, 78 111. R, 261. cognizance and hear and adjudicate and decree. 

(1) The duties of the county clerk in receiving an * 

in canvassing and estimating the votes, and ta riSSS MrtftESS nf P f Ml ? S electio » returns, 

tenal, and no judicial or discretionary powers are TcSnferred^non /^ 16 ^ 11 ' are P ure1 ^ Ris- 
ers, except, perhaps, that of determining' whether ?th^h,™?r* im 0T - the board of canvass- 
places, and ascertaining from the returns I themselves for SS S e , nuine > or polled at proper 
rell & Bryant v. Colby, 2 Minn. R, 180 inemseives tor wn °m the votes were intended. O'Far- 

^A^^^&^V^^^^r^^^ eleC %1 n to the P erson having the 
issue such certificate. State v. i™K,lT^ W WlU be granted t0 com P el h ™ to 
The certificate of election is prima facie *m*> *« «»,. « 

aside by a contest in the form prescribed by law S2£JSl» 5^* 0fflo ^ and can onl y be set 
JTerr v. 2V^o, 47 Penn. St. R. 29'' 7 PieUyman v. Supervisors et al., 19 111. R, 406 • 

Where the certificate required of the county clerk in a case for the removal of a coumy sea,, 



418 ELECTIONS. [DIV. VHI. 

73. Tie vote.] § 73. "When two or more persons receive an 
equal and the highest number of votes for an office to be filled 
by the county alone, the county clerk shall issue a notice to such 
persons of such tie vote, and require them to appear at his office, 
on a day named in the notice, within ten days from the day of 
election, and determine by lot which of them is to be declared 
elected. 

74. Drawing lots— Certificate.] § 74. On the day appointed, 
the clerk and other canvassers, or, in case of their absence, the 
state's attorney or sheriff shall attend, and the parties interested 
shall appear and determine by lot which of them is to be declared 
elected ; and the clerk shall issue his certificate of election to the 
person thus declared elected. 

75. Compensation of judges and clerks.] § 75. It shall be the 
duty of the county clerk, on the receipt of the election returns 
of any general or special election, to make out his certificate, 
stating the compensation to which the judges and clerks of each 
election may be entitled for their services, and lay the same be- 
fore the county board at its next session ; and said board shall 
order the compensation aforesaid to be paid out of the county 
treasury. [See § 63. 

76. Abstracts sent to secretary of state.] § 76. Immediately 
after the completion of the abstracts of votes, the county clerk 
shall envelope and seal up a copy of the abstracts of votes for 
governor, lieutenant governor, secretary of state, auditor of pub- 
lic accounts, treasurer, attorney general, and superintendent of 
public instruction, and indorse upon it in substance, "Abstracts 

of votes for state officers from county," and address it, 

"The Speaker of the House of Kepresentatives." The county 
clerk shall at the same time, envelope and seal up a copy of each 
of the abstracts of votes for other officers, and indorse the same 
so as to show the contents of the package, and direct the same 
to the secretary of state. The several packages shall then be 
placed in one envelope and addressed to the secretary of state. 
[See Const., art. 5, § 4. 

77. How abstracts sent.] § 77. Such abstracts shall be trans- 
mitted to the secretary of state by mail, or, in case it shall be 
necessary, by special messenger. 

78. Canvass by secretary of state, etc.— Commissions, etc.— 
Proclamation.] § 78. The secretary of state, auditor, treasurer 
and attorney general, or any two of them, in the presence of the 

omitted to state the number of votes cast at the election, so it might be seen whether the propo- 
sition had been carried or lost, the returns of the judges and clerks of election may be resorted 
to for the purpose of ascertaining that fact. The object of such an election will not be defeated 
for the want of such a statement in the certificate. The People ex rel. v. Wtant, 48 111. K., 268. 



iDIV. Till.] OFFENSES AND PENALTIES. 419 

governor, shall proceed within twenty days after the election, and 
sooner, if all the returns are received, to canvass the votes given 
for representatives to congress, judges of the supreme court, clerks 
of the supreme court, judges of the circuit court, senator, repre- 
sentatives to the general assembly, and members of the state 
board of equalization, respectively ; and the persons having the 
highest number of votes for the respective offices shall be declared 
duly elected; but if it appears that more than the number of 
persons to be elected have the highest and an equal number of 
votes for the same office, the secretary of state, in the presence 
of the other officers and the governor, shall decide by lot which 
of such persons shall be elected ; and to each person duly elected, 
the governor shall give a certificate of election or commission, 
as the case may require, and shall cause proclamation to be made 
of the result of the canvass. 

OFFENSES AND PENALTIES. 
Section. 

79. Liquor. 

80. False swearing. 

81. Illegal voting. 

82. Other offenses. 

1. Abetting illegal voting. 

2. Deceiving voter. 

3. Fraudulently changing ballot. 

4. Unlawfully influencing voter. 

5. Offering to bribe voter, etc. 

6. Bribing voter. 

7. Bribing, etc., judge or clerk. 

83. Receiving or requesting bribes, etc. 

84. Disorderly conduct. 

85. Betting on elections. 

86. Offenses of judge of election. 

87. When judge or clerk ascertains or discloses vote. 

88. When other person ascertains or discloses vote. 

89. Neglect of duty by clerk. 

90. Failure to deliver poll books, etc. 

91. Neglect of duty by county clerk. 

92. Fraud in canvassing, etc. 

93. Carrying away, defacing, etc., poll books, etc. 

79. Liquor.] § 79. No spirituous, malt, vinous or intoxicat- 
ing liquor shall be sold or given away at retail, nor shall any sa- 

When no certificate or other formal mode of making known to a person his 

election to a public office is required by law, the result of the election, as ascertained and an- 
nounced at the close, is conclusive upon the election of officers, and can not afterwards be re- 
considered or varied. State v. Warren, 1 Houston (Del.) R., 39. 

In a proceeding hy quo warranto to try the right to an office elective by the 
people, it is competent to go behind the certificate to ascertain the decisive fact of who received 
the most legal votes. (Denio, C. J., and Weight and Makvin, justices, dissenting.) People v. 
Pease, 27 N. Y. (13 Smith), R., 45. 

The supreme conrt has no power to decide upon the right of a party to hold 
a seat in the legislature, but it may compel the proper officers to give the proper credentials to 



420 ELECTIONS. [DIY. VIIL. 

loon or bar room, or place where such liquor is so sold or given 
away, be open upon any general or special election day within 
one mile of the place of holding an election. Whoever violates 
the provisions of this section shall be fined in a sum not less 
than 25 nor more than $100. It shall be the duty of the sheriff,, 
coroner, constables and other officers of the county, and magis- 
trates, to see that the provisions of this section are enforced. 

80. False swearing.] § 80. If any person whose vote is chal- 
lenged, or any witness sworn under the provisions of this act, 
shall knowingly, willfully and corruptly, swear falsely, he shall 
be deemed guilty of perjury, and on conviction thereof shall be 
punished accordingly. 

81. Illegal voting. § 81. Whoever unlawfully votes more than 
once at any election, or offers to vote after having once voted at 
such election, or knowing that he is not a qualified voter at an 
election, willfully votes at such election, shall, on conviction 
thereof, be fined in a sum not exceeding $1,000, or imprisoned in 
the county jail not exceeding one year, or both, in the discretion 
of the court. (1) 

82. Other offenses.] § 82. Whoever willfully aids * or abets 
any one not legally qualified to vote at an election, in voting or 
attempting to vote, at such election ; or, 

enable the party to assert his claim before the proper authority. The award of a certificate to 
either candidate under the mandate of the court will not determine his election. O'Farrell & 
Bryant v. Colby, 2 Minn. R., 180; The People ex rel, v. miliar d, 29 111. R., 413. 

Mandamus lies to compel the clerk to make out and deliver the certificate of election. 
People ex rel. v. Billiard, 29 111. R., 413. And to compel the announcement of the result of the 
canvass. People ex rel. v. Salomon, 46 111. R., 415. 

Tlie right to an office dependent on an election by the people, is to be deter- 
mined by the number of legal votes received at the election, and not by the certificate of elec- 
tion, nor by the governor's commission. Ex-parte Reed, 50 Ala. R., 439. 

The decision of the canvassers of an election affords prima facie evidence of the 
legal election of the person found to have received a plurality of the votes cast, and unless his 
title to the office is contested in some mode known to the law. he will be entitled te the office for 
the term for which he was elected. People ex rel. Evans v. Callaghan, 83 111. R., 128. 

Our institutions rest upon the principle that the controlling power is vested in the majority; 
and in the absence of any provision of law to the contrary, the will of any corporation or other 
community is properly declared only by the voice of the majority. State v. Pagan, 42 Conn. R., 33. 

A person elected to a county office, although he receives no official notice of his election, must 
qualify within the time prescribed by law. The neglect or refusal of the county clerk to make 
out his certificate of election, in compliance with the statute, will not impair his title to the office. 
Spooner ex rel. etc. v. Elderkin, 5 Wis. R., 300. 

Officers elected on the proper day, refusing to qualify, become officers de facto, and their acts 
are valid as to third persons, and can only be inquired into directly, not collaterally. Coles 
County v. Allison. 23 111. R., 437. See People v. Collins, 7 Johns. R., 549; People v. Bunkle, 9 Johns.. 
R.,147. 

Mandamus is the proper remedy against any officer to obtain possession of seals, books, papers, 
muniments, or other property belonging to corporations. The People ex rel. Brewder & Jones v. 
Kilduff. 15 111. R., 502. 

(1) The poll lists are the highest and best evidence ofwho voted at an election, and 
when ; and when it does not appear from them that the defendant voted in his real name, or in 
the name by which he is indicted, or that there is a name on the poll list representing the ballot 
cast by him, there can be no conviction for illegal voting. Wilson v. State, 52 Ala. R., 299. 

A minor ■who is otherwise duly qualified, cannot he convicted of illegal voting: 
because he was not of the requisite age, if he voted under the honest belief, induced by informa- 
tion from parents, relatives, or acquaintances having knowledge of the time of his birth, that he- 
had obtained his majority. Gordon v. Slate, 52 Ala. R., 308. 



JDIV. VIII.] OFFENSES AND PENALTIES. 421 

2d. Furnishes an elector with a ticket or ballot informing him 
that it contains a name different from that which appears there- 
on, with intent to induce him to vote contrary to his inclina- 
tions ; or, 

3d. Fraudulently or deceitfully changes a ballot of an elector, 
with intent to deprive such elector of voting for such person as 
he intended; or, 

4th. Endeavors to procure the vote of any elector, or the in- 
fluence of any person over an elector at any election, for himself 
or for or against any person, by means of a promise of a favor, 
or by means, of violence or threats of violence, or threats of 
withdrawing custom or dealing in business or trade, or enforc- 
ing the payment of a debt, or bringing a suit or criminal prose- 
cution, or any other threat of injury to be inflicted by him or his 
means; or, 

5th. By offering a reward or bribe, or by treating to or giv- 
ing spirituous, malt, or other liquor, either directly or indirectly, 
influences or attempts to influence any voter in giving or with- 
holding his vote at an election; or, 

6th. By bribery, or by corrupt or unlawful means, prevents 
ov attempts to prevent any voter from attending or voting at an 
election; or, 

7th, Gives or offers to give any valuable thing or bribe to any 
judge or clerk of election, as a consideration for some act to be 
done or omitted to be done, contrary to his official duty, in rela- 
tion to such election, shall, on conviction thereof, be fined in a 
sum not exceeding $1,000, or imprisoned in the county jail not 
-exceeding one year, or both, in the discretion of the court. 

83. Receiving, requesting, etc., bribe, etc.] § 83. Whoever 
receives, requests or demands any bribe or reward forbidden by 
this act to be given, shall be liable to the same penalties as are 
.prescribed in this act for giving such bribe or reward.(l) 

84. Disorderly conduct.] § 84. Whoever is disorderly at any 
election shall forfeit a sum not exceeding $25. 

85. Betting on election. § 85. Whoever bets or wagers any 
money, property or other valuable thing, upon the result of an 
election which may be held under the constitution or laws of this 
state, or bets or wagers money, property, or other valuable thing, 
upon the number of votes which may be given to any person at 
an election, or upon who will receive the greatest number of 
votes at an election; or agrees to pay any other person any 
money, property, or other valuable thing, in the event that an 

(1) It is an indictable misdemeanor to propose to receive a bribe by an alder- 
man of a city council or by any public officer, inciting anotber to the commission of any indict- 
able offense, though without success, is a misdemeanor. Walsh v. The People, C5 111. R., 58. 



422 ELECTIONS. [DIV. YIH. 

election shall result in one way, or in the event that any person 
shall or shall not be elected, or shall receive a greater number of 
votes than others, upon conviction thereof he shall be fined in a 
sum not exceeding $1,000, or imprisoned in the county jail not 
exceeding one year, or both, in the discretion of the couri(l) 
See Eev. Stat., ch. 38, p. 372, § 132. 

86. Offenses of judge of election.] § 86. If any judge of any 
election shall permit a person to vote whose vote is challenged, 
without the proof required in this act ; or, (2) 



(1) The voting of electors of this State, for a president of the United States, is an 
election held under the laws of this State, and a bet or wager as to the result of such vote, is a . 
wager on the result of an election under the statute. McClurken v. Detrich et al., 33 111. R., 349. 
See Gordon v. Casey, 23 111. R., 71 ; Stephens v. Sharpe, 26 111. R., 404. 

The election law, concerning netting on elections, is intended to apply to the elec- 
tion of presidential electors, as well as to that of State officers; and bets made on such elections - 
are void. Gordon v. Casey, 23 111. R., 70. 

A wager on the result of the electoral vote for president of the United States, in 
this State, i-. void, as against public policy, by the common law. Allen v. Hearne, 1 Tenn. R. ( 57 . 
Bunn v. Biker, 4 Johns. R., 426; Bush v. Keeler, 5 Wend. L., 250 ; Morgan v. Pettil, 3 Scam. R., 531; 
Gordon v. Casey, 23 111. R., 71 ; Stephens v. Sharpe, 23 111. R., 404; McClurken v. Detrich et al., 33 I1L 
R., 350. 

A bet or wager on the result of an election in this State, whether made before 
or after the election, would be illegal, as against good policy. Morgan v. Pettit, 3 Scam. R., 531. 

A wager as to the result of a presidential election, in another State, made 
after the vote has been cast, is not against public policy. Smith v. Smith, 21 111. R., 244. 

The law prohibiting betting on elections applies only to elections in tills State, . 
and does not extend to those made concerning elections to be held in other States ; therefore, a 
bet or wager between two citizens of this State, upon the majority which General Harrison 
would obtain at the presidential election in the State of Kentucky, is not illegal ; and an action 
can be maintained by the winner to recover the amount of the wager. Morgan v. Pettit, 3 Scam. 
R., 531. 

Where B. and L. purchased a piece of cloth at a store on credit, and at the time of the purchase 
a memorandum was made as follows: "If Mr. Douglas is elected to Congress. Brown is to pay 
for the cloth ; if Mr. Stewart is elected, James Lurton has it to pay ; " Held, that the contract was 
in severalty. Held, also, that the contract for the sale of the cloth was valid; and was not tainted 
by the bet of B. and L. Lurton v. Gilliam et at., 1 Scam. R., 579. 

At common law all -wagers are recoverable, but such as are prohibited by 
rtatute; such as are against sound policy; and such as tend to a breach of the peace, to immo- 
rality, or indecency, or injuriously affect the rights of third persons. Morgan v. Pettit, 3 Scam. 
R., 530. 

A stakeholder, unless some other mode has been provided, is the proper person to decide who > 
has won a wager. Smithy. Smith, 21 111. R„ 244. The court concurs with the case of Ethron v. 
Kingsman, 4 Eng. Com. Law, R, 625. 

A' note for money, payable if " Abraham Lincoln receives the electoral vote of the State of Illi- 
nois," is a bet on election, and void on its face. Gordon v. Casey, 23 111. R., 71 ; Guyman v. Bur- 
lingame, 36 111. R., 201. 

It seems a court of equity will not decree the specific performance of a contract, the considera- 
tion of which is a wager upon an election held under the law of this State. McClurken v. Detrich < 
et al., 33 111. R., 349. 

(2) It is only when the judge of election allows the exercise of the elective fran- 
chise by one whose right he suspects, or whose vote is challenged, without tendering the re- 
quired oath, that the judge violates the law. Spraigins v, Houghton, 2 Scam. R., 377. 

An election officer is not criminally liable for a mere mistake of judgment, ■ 

but only for a willful disregard of duty ; when indicted for rejecting a vote, the presumptions 
are in his favor. Commonivealth v. Lee, 1 Brewster (Penn.). 273. 

An action on the case will not lie against the inspectors of election for refusing the vote of a 
qualified elector, unless on proof of malice, express or implied. Jenkins v. Waldron, 11 Johns. N. 
Y. R., 114. 

Election officers are generally punishable by indictment, for knowingly receiv- 
ing the vote of one who is not a duly qualified elector. State v. Poll, 7 West, L. J., 138. State v. 
McDonald, 4 Harrington, 555. 

Fraud, -when imputed to the acts of inspectors of election, implies an illegal and 
wrongful act, purposely committed. People v. Cook, 8 N. Y. R., 67. 



DIV. VIII.] OFFENSES AND PENALTIES. 423 



2d. Shall knowingly and willfully permit a person to testify as 
a witness contrary to the provisions of this act ; or, 

3d. Shall knowingly permit a person to vote who is not qualified 
according to law ; or, 

4th. Shall knowingly receive and count more than one vote from 
the same person at the same election for the same office, except as 
allowed by law ; or, 

5th. Shall refuse to receive the vote of a qualified elector at 
such election, who will make the affidavit and proof required by 
this act ; or, 

6th. Shall be guilty of any fraud, corruption, partiality or man- 
ifest misbehavior ; or, 

7th. Shall open or unfold any ballot when the same is presented 
to be deposited in the ballot box ; or, 

8th. Shall willfully neglect to perform any of the duties required 
of him by this act, shall, on conviction thereof, be fined in a sum 
not exceeding $1,000, or imprisoned in the county jail not exceed- 
ing one year, or both, in the discretion of the court. 

87. When judge or clerk ascertains or discloses vote.] § 87. 

If any judge or clerk of election shall willfully or corruptly ascer- 
tain, by comparison of the poll book with the ballot, or shall allow 
any other person to ascertain by such comparison or otherwise, or 
shall willfully publish or reveal how any elector voted at an elec- 
tion, he shall, on conviction thereof, be fined in any sum not ex- 
ceeding $1,000, or imprisoned in the county jail not exceeding one 
year, or both, in the discretion of the court. 

88. When other person ascertains or discloses vote.] § 88. If 

any person shall willfully or corruptly ascertain or publish, or re- 
veal how any elector voted at an election, he shall, on conviction 
thereof, be fined in any sum not exceeding $1,000, or imprisoned 
in the county jail not exceeding one year, or both, in the discre- 
tion of the court. 

89. Neglect of duty by clerk.] § 89. If any clerk of an elec- 
tion shall willfully neglect to perform any duty required of him as 
clerk of election, or shall be guilty of fraud, corruption or mis- 
behavior as such clerk, he shall, on conviction, he fined in a sum 
not exceeding $500, or imprisoned in the county jail not exceeding 
six months, or both, in the discretion of the court. 

90. Failure to deliver poll books, etc.] § 90. If any judge, 
clerk or messenger, after having been deputed by the judges of 
election to carry the poll books, tally list and votes of such elec- 
tion to the place where, by law, they are required to be canvassed, 
willfully or negligently fails to deliver such poll books, tally list or 
ballots, within the time prescribed by law, with the seal unbroken, 



424 » ELECTIONS. [DIY. VHL 

he shall, upon conviction, be fined in a sum not exceeding $500, or 
imprisoned in the county jail not exceeding six months, or both, 
in the discretion of the court. 

91. Neglect by county clerk.] § 91. If the county clerk will- 
fully neglects or refuses to perform any duty required of him by 
this act, he shall, upon conviction, be fined in a sum not exceed- 
ing $500, and shall be liable to the person injured by reason of such 
neglect or refusal, in an amount not exceeding $500, to be recovered 
in an action on the case. 

92. Fraud in canvassing, etc.] § 92. If any county clerk or 
justice of the peace shall be guilty of any fraud, corruption or 
misbehavior, in canvassing the votes or making any abstract of 
votes, or issuing any certificate of election, he shall, on convic- 
tion, be fined in any sum not exceeding $500, or imprisoned in 
the county jail not exceeding one year, or both, in the discretion 
of the court. 

93. Carrying away, defacing, etc., poll books, etc.] § 93. Who- 
ever shall willfully and wrongfully take or carry away from the 
place where it has been deposited for safe-keeping, or deface, 
mutilate or change any poll book, ballot or tally list, or any name 
or figure therein, shall, on conviction, be fined in a sum not ex- 
ceeding $1,000, or imprisoned in the county jail not exceeding 
one year, or both, in the discretion of the court 

CONTESTING ELECTIONS. (1) 

Section. 

94. When legislature to hear. 

95. Senators and representatives. 

96. By supreme court. 

97. By circuit courts. 

98. By county court. 

99. Election of state officers— Petition of contestant 

100. Joint committee to take testimony. 

101. Powers of joint committee. 

102. Notice. 

103. Testimony. 

104. Report of committee — Hearing — Decision. 

105. Who may contest senator or representative. 

106. Notice of contest. 

107. Testimony— How taken. 

108. Power of officer taking testimony. 

109. Depositions, etc., to be sent to secretary of state. 

110. Notice and depositions delivered, etc. — Duty of presiding officer. 

111. Rights of either house saved. 

112. Who may contest election of other officers. 

113. Contestant to file statement, etc. 

114. Summons. 

2) When the law provides a mode for contesting an election, that mode must be 
owed. Dickey v. Reed, 78 111. R., 261. 



DIY. Till. J CONTESTING ELECTIONS. 425 



115. Evidence. 

116. Trial. 

117. Other election contested. 

118. When electors may defend for county. 

119. Judgment. . ■ 
.120. Tie. 

121. Certified copy of judgment — Effect of. 

122. When election adjudged void. 

123. Appeals. 

94. When legislature to hear.] § 94. The legislature, in joint 
meeting, shall hear and determine cases of contested elections of 
governor and lieutenant-governor, secretary of state, auditor of 
public accounts, treasurer, superintendent of public instruction, 
and attorney general. The meeting of the two houses, to decide 
upon such elections, shall be held in the hall of the house of 
representatives, and the speaker of the house shall preside. [See 
Const., art. 5, § 4. 

95. Senators and representatives.] § 95. The senate and 
house of representatives shall severally hear and determine con- 
tests of the election of their respective members. [See Const., 
art. 4, § 9. 

96. By supreme court.] § 96. The supreme court shall hear 
and determine contests of the election of judges of the supreme 
court, clerks of the supreme court, judges of the circuit court, 
judges of the superior court of Cook county, members of the 
state board of equalization ; but no judge of the supreme court 
shall sit upon the hearing of any case in which he is a party. 

97. By circuit courts.] § 97. The circuit courts of the re- 
spective counties shall hear and determine contests of the elec- 
tion of the judges of the county court of their counties, and in 
regard to the removal of county seats, and in regard to any other 
subject which may by law be submitted to the vote of the people 
•of the county. 

98. By county court.] § 98. The county court shall hear and 
determine contests of election of all other county, township and 
precinct officers, and all other officers for the contesting of whose 
election no provision is made.(l) 

99. Election of state officers— petition of contestant.] §99. 

"When any elector shall desire to contest the election of gov- 
ernor, lieutenant-governor, secretary of state, auditor of public 
accounts, treasurer, superintendent of public instruction, or at- 
torney-general, he shall, within ten days after the result of the 

(1) Held, that the county court liad not jurisdiction to hear or determine a con- 
tested election of a mayor of a city, where it was shown that the city was organized under the 
general law., as the law under which the election of city officers can be contested, does not apply 
;to cities not organized under the general law. Brush v. Lemma, 77 111. R., 496. 



426 ELECTIONS. [div. 7m.. 

election shall have been determined, present a petition to the 
general assembly, setting forth the points on which he will con- 
test such election, and praying for leave to produce his proof. 

100. Joint committee to take testimony.] § 100. The general 
assembly shall appoint a joint committee to take the testimony 
on the part of the petitioner, and the person whose place is con- 
tested. 

101. Powers of joint committee.] § 101. The committee so 
appointed shall have power to send for witnesses, and compel 
the attendance of witnesses and the production of papers, issue 
commissions under the hand of its chairman, to any officer au- 
thorized to take depositions in other cases, to take the deposition 
of witnesses upon the points set forth in the petition, at such 
time and place as the commission shall direct. 

102. Notice.] § 102. Reasonable notice shall be given by the 
party in whose favor the deposition is to be taken, to the oppo- 
site party, of the time and place of taking the same. 

103. Testimony.] § 103. No testimony shall be taken except 
upon the points set forth in the petition. 

104. Report of committee— Hearing— Decision.] §104 The 

committee shall report the facts to the house, and a day shall be 
fixed by a joint resolution for the meeting of the two houses to 
decide upon the same, in which decision the yeas and nays shall 
be taken and entered upon the journal. 

105. Who may contest senator or representative.] §105. The 
election of any member declared duly elected to a seat in the sen- 
ate or house of representatives of the general assembly, may be 
contested by any qualified voter of the county or district to be 
represented by such senator or representative. 

106. Notice of contest.] §106. The contestant shall, within 
thirty days after the result of the election shall have been deter- 
mined, serve on the person whose election he will contest, a no- 
tice of his intention to contest such election, expressing the points 
on which the same will be contested ; and shall, also, on or be- 
fore the next session of the general assembly, deliver a copy, of 
such notice to the secretary of state. In case the person whose 
election is contested is absent, or cannot be found, service may 
be had by leaving a copy of such notice at his usual place of 
residence. (1) 

(1) The ohject of requiring the "points" of contest to he stated, is for the pur- 
pose of informing the adverse party of the grounds of contest, so that he may prepare to meet, 
them Each party is therefore required, when he becomes the actor, to give notice of the spe- 
cific grounds on which he intends to contest the election, or the correctness of the returns or 
canvass. Taylor v. Taylor et al., 10 Minn. R., 107. 

A court of chancery has no jurisdiction to enquire into the validity of elec- 



DIV. VIII.] CONTESTING ELECTIONS. 427 

107. Testimony— How taken.] §107. Whenever a notice shall 
have been given of intention to contest an election, as provided 
in the preceding section, either party may proceed to take testi- 
monv of any witness before any judge, justice of the peace, clerk 
of a court, master in chancery, or notary public, on giving to the 
adverse party or his attorney, ten days' notice of the time and 
place of taking the same, and one day in addition thereto (Sun- 
day inclusive) for every fifty miles' travel from the place of resi- 
dence of such party to the place where such deposition is to be 
taken. If the party entitled to notice resides in the county where 
the deposition is to be taken, five day's notice shall be sufficient. 

108. Power of officer taking testimony.] § 108. The officer 
before whom depositions are taken shall have power to compel the- 
production of papers, and the attendance of witnesses ; and the 
same proceedings may be had to compel the attendance of wit- 
nesses, as are provided in the cases of taking depositions to be 
used in courts of law and equity. 

109. Deposition, etc., to be sent to secretary of state.] § 109. 
A copy of the notice to take depositions, with proof of the ser- 
vice thereof, with the deposition, shall be sealed up and trans- 
mitted by mail, or otherwise, to the secretary of state, with an 
indorsement thereon, showing the names of the contesting par- 
ties, the office contested, and the nature of the papers. 

110. JDeliverey of notice of contest, etc.— Duty of presiding 
officer.] § 110. The secretary of state shall deliver the copy of 

tions. Nor will such jurisdiction be conferred by the mere omission of the particular case 
from the operation of the general law on the subject of contested elections. Moore v. Hoisington, 
et al., 31 111. R., 243. 

The person wh< holds a certificate from the authorities appointed by law to 

canvass the votes, declaring him elected to an office, and who has complied with the require- 
ments of law in relation to the office, is entitled to the present possession thereof, notwithstand- 
ing the prior incumbent contests his election, denying its legality. Such contest is not an. 
appeal, but is an original proceeding under our statutes, going behind the poll books, and purging 
the election. The People ex rel. Cummings v, Head, 25 111., 325. 

It is competent for the court and jury to go behind the certificate of the can- 
vassers, for the purpose of determining who was legally elected to a contested office. Carpenter 
v. Ely, 4 Wis. R., 420 

On the trial of a contested election, the members returned as elected, though sworn in, are not 
competent to vote on the question of the validity of their own election. Commonwealth v. 
McCloxkey, 2 Rawle (Penn.), 369. 

A petition complaining of an undue election and return, must set forth the facts with preci- 
sion; and they must be sufficient, if sustained by proof, to render it the duty of the court, either 
to vacate the election, or to declare that another person than the one returned was duly elected. 
Unless the petition be thus specific, and set forth facts that, if true, would have changed the 
result, it will be quashed, on motion. Mere irregularities on the part of the election officers, 
will not vitiate the poll. Skerrett's Case, 2 Parsons (Penn.,) 509 ; see also 8 N. Y. R., 67. 

The question whether a voter was or was not duly qualified, is not concluded by the decision 
of the inspectors; it is open to examination, in subsequent proceedings, upon any competent 
evidence. People v. Pease, 27 N. Y. R., 45. 

The title to an office confers upon the person elected a right to the fees and emoluments- 
thereof from the commencement of his legal term. An action for money had and received will 
lie by the officer dejure, against one who has intruded into the office, by color of a certificate of 
election, to cover the fees received during the time of such intrusion If the incumbent received* 
his commission bona fide, he will be allowed, in such action, his reasonable expenses in execut- 
ing the duties of the office; otherwise, if his intrusion w^:e without pretense of legal righto. 
Mayfield v. Moore, 53 111. R., 428. 



428 elections. [div. Yin. 

the notice deposited with him by the contestant, and the deposi- 
tions, unopened, to the presiding officer of the branch of the gen- 
eral assembly to which the contest relates, on or before the sec- 
ond day of its session next after the receipt of the same ; and 
the presiding officer shall immediately give notice to his house 
that such papers are in his possession. 

111. Rights of either house saved.] § 111. Nothing herein 
contained shall be construed to abridge the right of either branch 
of the general assembly to grant commissions to take depositions, 
or to send for and examine any witnesses it may desire to hear 
on such trial. 

112. Election of other officers.] § 112. The election of any 
person declared elected to any office other than governor, lieuten- 
ant governor, secretary of state, auditor of public accounts, 
treasurer, superintendent of public instruction, attorney general, 
senator or representative, may be contested by any elector of the 
State, judicial division, district, county, town, or precinct in and 
for which the person is declared elected. 

113. Contestant to file statement, etc. §113. The person de- 
siring to contest such election shall, within thirty days after the 
person whose election is contested is declared elected, file with 
the clerk of the proper court a statement, in writing, setting forth 
the points on which he will contest the election, which statement 
shall be verified by affidavit in the same manner as bills in chan- 
cery may be verified. 

114. Summons.] § 114. Upon the filing of such statement, 
summons shall issue against the person whose office is contested, 
and he may be served with process, or notified to appear, in the 
same manner as is provided in cases in chancery. 

115. Evidence.] § 115. Evidence may be taken in the same 
manner and upon like notice as in cases in chancery. 

116. Trial.] § 116. The case shall be tried in like manner as 
in cases in chancery.(l) . 

117. Other elections contested.] § 117. Any five electors of 
the county may contest an election upon any subject which may 
by law be submitted to a vote of the people of the county, upon 



(1) The county court is empowered to hear and determine contests of elec- 
tion cases, and anv elector of the township or precinct may make the contest. Such contest is 
placed on the same footing as cases in chancery, and the contestant may place his contest on any 
.ground he chooses. Dale v. Irwin, 78 111. R.. 170. 

The question to he determined when an election "was contested is, was there a 
mistake in counting the votes, and to what extent. The cause of the mistake is unimportant. 
Talkington v. Turner 71 111. R., 234. 

Where the hallots are lost, the unsworn declarations of a voter as to how he 
voted, are not competent evidence to prove how he in fact voted. Beardstown et al., v. Virginia 
et a*., 76 111. R.,35. 



DIV. YIH.] CONTESTING ELECTIONS. 42$ 

filing in the circuit court, within thirty days after the result of the 
election shall have been determined, a written statement in like 
form as in other cases of contested elections in the circuit court. 
The county shall be made defendant, and process shall be served 
as in suits against the county; and like proceedings shall be had 
as in other cases of contested elections before such court. 

118. When elector may defend for county.] § 118. In case 
the county board shall fail or refuse properly to defend such con- 
test, the court shall allow any one or more electors of the county to 
appear and defend, in Vhich case the electors so defending shall be 
liable for the costs in case the judgment of the court shall be in 
favor of the contestant. 

119. Judgment.] § 119. The judgment of the court, in cases 
of contested election, shall confirm or annul the election accord- 
ing to the right of the matter; or, in case the contest is in relation 
to the election of some person to an office, shall declare as elected 
the person who shall appear to be duly elected. 

120. Tie.] § 120. If it appears that two or more persons 
have, or would have had if the legal ballots cast or intended to be 
cast for them had been counted, the highest and an equal number of 
votes for the same office, the persons receiving such votes shall 
decide by lot, in such manner as the court shall direct, which of 
them shall be declared duly elected; and the judgment shall be 
entered accordingly. 

121. Certified copy of judgment.] § 121. A certified copy of 
the judgment of the court shall have the same effect as to the 
result of the election as if it had been so declared by the can- 
vassers. 

122. When election adjudged void.] § 122. When the person 
whose election is contested is found to have received the highest 
number of legal votes, but the election is declared null by reason of 
legal disqualification on his part, or for other causes, the person 
receiving the next highest number of votes shall not be declared 
elected, but the election shall be declared void.(l) 

123. Appeal.] § 123. In all cases of contested elections in the 
circuit courts or county courts, appeals may be taken to the su- 
preme court in the same manner, and upon like conditions as is 
provided by law for taking appeals in cases in chancery from the 
circuit courts. 



(1) If" the person receiving the highest number of votes is not qualified to take 
the office, the candidate having the next highest number is not legally elected. Cooley on Const. 
Limitations, 620. Opinion Atfy Gen. Edsall, April 4, 1873. 



430 ELECTIONS. [DIV. VIIL 



RESIGNATIONS AND VACANCIES. 



Section. 



124. Resignation of elective officers. 

125. When office becomes vacant. 

126. Who may determine whether vacancy exists. 

127. Vacancy in office of governor or lieutenant governor. 

128. Vacancy in other state offices. 

129. Vacancy in office of senator or representative. 

130. Vacancy in office of representative in congress. 

131. Vacancy in office of judge. 

132. Vacancy in office of clerk of court. 

133. Vacancy in office of county and precinct officers. 

134. To what elections this act may apply. 

124. Of elective officers.] § 124. Kesignations of elective offi- 
ces shall be made to the officer, court or county board authorized 
by law to fill a vacancy in such office by appointment, or to order 
an election to fill such vacancy. 

125. When office becomes vacant] § 125. Every elective 
office shall become vacant on the happening of either of the fol- 
lowing events, before the expiration of the term of such office: 

First — The death of the incumbent 

Second — His resignation. 

Third — His becoming insane. 

Fourth — His ceasing to be an inhabitant of the state ; or, if the 
office is local, his ceasing to be an inhabitant of the district, 
county, town or precinct for which he was elected. 

Fifth — His conviction of an infamous crime, or of any offense 
involving a violation of official oath.(l) 

Sixth — His removal from office. 

Seventh — His refusal or neglect to take his oath of office, or to 
give or renew his official bond, or to deposit or file such oath or 
bond within the time prescribed by law. 

Eighth — The decision of a competent tribunal declaring his elec- 
tion void. 

126. Who may determine whether vacancy exists.] § 126. 

Whenever it is alleged that a vacancy in any office exists, the offi- 
cer, court, or county board whose duty it is to fill the vacancy by 
appointment, or to order an election to fill such vacancy, shall 
have power to determine whether or not the facts occasioning such 
vacancy exist. (2) 

(1) The trial and conviction of an officer of the offense of toritoing a voter previ- 
ously to his election to the office, does not constitutionally disqualify him from exercising the 
duties thereof; it is not a "conviction of misbehavior in office or of any infamous crime," within 
the meaning of the Constitution. Commonwealth v. Shaver, 3 Watts & Sergeant, (Penn. R.,) 338. 

(2) Where a town officer has been declared elected toy the election board, and 

qualifies by taking the necessary oath of office, the board of appointment has no power to fill 
the office by appointment, as in case of a vacancy, nor has it authority to hear evidence and de- 
cide that the election was irregularly conducted, or that the election was fraudulent, and thus 
declare a vacancy. People ex rel. v. Callaghan, 83 111. R., 128. 



.DIV. VIII.] RESIGNATIONS AND VACANCIES. 431 

127. Governor and lieutenant governor vacant.] § 127. In 

case of vacancies in the office of governor and lieutenant-governor, 
the officer performing the duties of the office of governor, or if 
there is no such officer, the secretary of state, shall issue a proc- 
lamation appointing a day for a special election to fill such vacan- 
cies, and shall issue a writ of election to the county clerks of the 
several counties in the state, and shall also, when necessary, call 
a special session of the general assembly to canvass the votes cast 
at such election : but if such vacancy shall occur not more than 
ninety days before a general election for members of the legisla- 
ture, the vacancies shall be filled at such general election, in which 
case no special session of the general assembly to canvass the 
votes shall be deemed necessary. 

128. Other state officers.] § 128. When a vacancy shall occur 
in the office of secretary of state, auditor of public accounts, 
treasurer, attorney-general, superintendent of public instruction, 
or member of the state board of equalization, the governor shall 
fill the same by appointment, and the appointee shall hold his 
office during the remainder of the term, and until his successor is 
elected and qualified. [See Const., art. 5, § 20. 

129. Senator or representative.] § 129. When a vacancy 
shall occur in the office of senator or representative in the general 
assembly, it shall be the duty of the county clerk of the county in 
which the member whose office is vacant resided, to notify the gov- 
ernor of such vacancy. Whereupon the governor shall issue a 
writ of election to the county clerk or clerks of the county or 
-counties in which the vacancy is to be filled, fixing a day upon 
which an election shall be held to fill such vacancy ; but unless the 
general assembly shall be in session at the time the vacacy occurs, 
or there shall be a session between the time at which the vacancy 
occurs and the next succeeding general election, no special election 
shall be ordered to fill such vacancy. 

130. Representatives in congress.] § 130. When any vacancy 
shall occur in the office of representative in congress from this 
state, the governor shall issue a writ of election to the county 
clerks of the several counties in the district where the vacancy 
exists, appointing a day to hold a special election to fill such 
vacancy. 

131. Judges.] § 131. When a vacancy shall occur in the office 
of judge of the supreme court, judge of the circuit court, judge of the 
superior court of Cook county, or judge of the county court, the clerk 
of the court in which the vacancy exists shall notify the governor of 
such vacancy. If such vacancy shall occur within one year before 
the expiration of the term of the office made vacant, the governor 
shall fill such vacancy by appointment ; but if the unexpired term 



432 ELECTIONS. [DIY. VHL. 

exceeds one year, the governor shall issue a writ of election, as in 
other cases of vacancies to be filled by election. 

132. Clerks of courts.] § 132. "When a vacancy shall occur 
in the office of clerk of the supreme court, or in the office 
of the clerk of the superior court, or clerk of the circuit 
court of any of the counties in this state, and the unexpired 
term of such clerk shall exceed one year, it shall be the duty of 
the court, or if in vacation, of the judge or judges of the court 
in which such vacancy may occur, to appoint a clerk pro tempore ; 
and such appointee shall qualify in the same manner, and give 
bond as required by law of the clerk of the court to which he is 
appointed, to be approved by the court, or if in vacation by the 
judge or judges making the appointment; and thereupon such 
appointee shall be authorized to perform all duties and receive 
all emoluments allowed by law to the duly elected clerk of such 
court, and shall hold such office until an election can be held to 
fill the same, as provided by the act to which this is an amend- 
ment, and until the person so elected shall have qualified accord- 
ing to law. Whenever an appointment shall be made, as pro- 
vided by this act, it shall be the duty of the court or the judge 
or judges making such appointment, to notify the governor forth- 
with of the vacancy filled by such appointment ; and upon re- 
ceiving such notice, it shall be the duty of the governor, as soon 
thereafter as may be practicable, to issue a writ of election as in 
other cases of vacancies to be filled by election, in the same 
manner as if no appointment had been made; and when any 
such vacancy shall occur, and the unexpired term does not exceed 
one year, such vacancy shall be filled by appointment by the 
court to which such office appertains, or by the judge or judges 
thereof. [As amended by act approved February 9, 1874; in 
force July 1, 1874. See Kev. Stat., ch. 25, § 11. 

133. County officers, precinct officers, etc.] § 133. When a 
vacancy shall occur in the office of county commissioner, state's 
attorney, sheriff, coroner, county clerk, recorder of deeds, county 
treasurer, county surveyor, justice of the peace, constable, or other 
county or precinct officer not otherwise provided for by law, with- 
in one year before the expiration of the term of such vacant office,, 
the vacancy shall be filled by appointment, by the county board 
of the county in which the vacancy exists ; but if such unexpired 
term exceeds one year, the county clerk, or, in case of a vacancy 
in his office, the chairman of the county board, shall issue an 
order appointing a day for an election to fill such vacancy, and 
cause notice thereof to be given as in other cases of election. 

134. To what elections this act may apply.] § 134. The provi- 
sions of this act shall apply, as far as practicable, to all elections 



DIV. VIII.] BEGISTRATION OF ELECTORS. 433 

in the state, whether general, special, local or municipal, except so 
far as they are modified or contravened by other legal enactments. 
[§ 135, repeal, omitted; see Be v. Stat., ch. 131, § 5.] 

REGISTRATION OF ELECTORS. 

AN ACT for the registry of electors ana to prevent fraudulent voting. [Approved and in force 
February 15, 1865. L. 1865, p. 54.] 

Section. 

135. Board of registration — First meeting — register. 

136. Manner of making register, etc. 

137. New election districts. 

138. Revising register — Second meeting. 

139. Proceedings open— Corrections, etc. 

140. Revising register — Addition of new names. 

141. Copies of register— Filing— Delivery to judges— Voting, etc 

142. Entry on register by clerk— non-registered voter — Penalty. 

143. Poll list and register to be filed. 

144. Registers open to inspection. 

145. Compensation. 

146. Preserving order. 

147. Fraudulent registration— False swearing, etc 

148. Blanks to be furnished. 

149. Time when act takes effect. 

135. Board of registration— Meeting— Register.] § 1. That 
the persons authorized by law, or appointed pursuant to any town 
or city ordinance, to act as judges or inspectors of elections in any 
town, city, or ward or other election district or precinct in this 
State, shall constitute a 'Board of Registry' for their respective 
towns, cities, wards, districts or precincts, and shall meet on Tues- 
day, three weeks preceding any State election, at nine o'clock A. M* 
and proceed to make a list, as hereinafter prescribed, of all per- 
sons qualified and entitled to vote at the ensuing election in the 
election district of which they are judges or inspectors ; which list, 
when completed, shall constitute and be known as the ' Register ' 
of electors of said election district. In election districts in towns 
which lie wholly within the limits of an incorporated city, a regis- 
ter of electors shall be made for all elections, whether general, 
special, local or municipal, in the same manner as herein pro- 
vided in the case of State elections. (1) [As amended, 1879. 

136. Manner of making register, etc.— First meeting.] § 2. 

Said registers shall each contain a list of the persons so qualified 
and entitled to vote in said election district, alphabetically arranged, 

(1) Persons whose names are put upon the registry list, but who do not appear 
and vote at an election, are presumed to have left the election district, and therefore no longer 
voters therein. The registry list of voters is no better evidence of the number of legal voters in 
a district or county than the poll list. The vote cast is prima facie evidence of not only the result 
of the election, but also of the number of legal voters in the county. The registry lists do not 
rebut or overcome this presumption. People ex rel. v. Garner, 47 111. R., 247. 

The act of I860, providing for the registry of electors, and to prevent frauds in elections, does 
not applv to elections held for the purpose of deciding upon the removal of a county seat. Bonn 
v. Smith et al., 47 111. R., 482. 

28 



434 elections. [diy. vm. 

according to their respective surnames, so as to show, in one 
column, the name at full length, and in another column, in cities, 
the residence, by the number of the dwelling, if there be a num- 
ber, and the name of the street or other location of the dwelling 
place of each person. It shall be the duty of said board to enter 
in said lists the names of all persons residing in their election dis- 
trict, whose name appears on the poll list kept in said district at 
the last preceding election — in cities the number of the dwelling 
and the name of the street or other location, if the same shall 
be known to or can be ascertained by such board — and for this pur- 
pose said board are authorized to take from the office in which 
they are filed the poll lists made and filed by the judges or inspec- 
tors of such district, at the election held next prior to the making 
of such register. In making said list, the board shall enter 
thereon, in addition to the names on the poll list, the names of all 
other persons who are well known to them to be electors in said 
district ; and the names of all persons on the poll list who have 
died or removed from the district shall be omitted from the regis- 
ter. The said board shall complete, as far as practicable, the said 
register on the day of their meeting, aforesaid, and shall make two 
copies thereof, and certify the register and each of the copies to 
be a true list of the voters in their district, so far as the same are 
known. Within two days thereafter, the said original list, together 
with the list taken from the office, as aforesaid, shall be filed by 
said board in the office of the town clerk of the town in which 
said election district may be ; but in counties not adopting town- 
ship organization, said list shall be filed with the judges or inspec- 
tors of election of the proper district, or if such election district 
is in a city then it shall be filed in the office of the city clerk of 
said city. And one copy of said list shall be kept by one of said 
judges or inspectors, and carefully preserved by him for their use on 
the day or days hereinafter mentioned, for the revision and correc- 
tion of the same. One copy of said list shall, immediately after its 
completion, be posted in some conspicuous place where the last 
preceding election in said district was held, and be accessible to 
any elector who may desire to examine the same or make copies 
thereof. Any person who shall take down, tear down or deface 
any list, so posted, shall be deemed guilty of misdemeanor, and shall 
be' punished by a fine of $50, or by imprisonment in the county jail 
for the term of sixty days, or by both fine and imprisonment. [As 
amended by act approved March 27, 1874 ; in force July 1, 1874. 

137. New election districts.] § 3. In case a new election dis- 
trict shall be formed by the organization of a new town, or by the 
division of any town or ward, or the incorporation of a city or 
town, the judges or inspectors of the election in the new district 
thus formed, may make their registry of electors on the day pre- 



DIV. VIII.] REGISTKATION OF ELECTORS. 435 

scribed by this act, in such manner as a majority of them may 
•direct, and for that purpose may make a list, or cause to be made a 
certified copy of the poll list or lists of the district in which such new 
district is situated, or they may dispense with such list or lists and 
proceed to make a register of electors, from the best means at 
their command. Said list shall only embrace the names of such 
persons as are known to them to be electors in their district, and 
shall be posted up and copies thereof made, as prescribed in the 
preceding section, and shall be corrected in the same manner that 
other lists are corrected. 

138. Revision register— Second meeting.] § 4. The said board 
shall again meet on Tuesday of the week preceding the said elec- 
tions, in their respective election districts, at the place designated 
for holding the polls of the election, for the purpose of revising, 
■correcting and completing said lists ; and for this purpose, in cities, 
they shall meet at eight o'clock in the morning, and remain in 
session until nine o'clock P. M., and in other districts they shall 
meet at nine o'clock in the morning and remain in session until 
four o'clock P. M. [As amended by act approved March 27, 1874 ; 
in force July 1, 1874. 

139. Proceedings open— Corrections, etc.] § 5. The proceed- 
ings of said board shall be open, and all persons residing and 
entitled to vote in said district shall be entitled to be heard by 
said board, in relation to corrections or additions to said register. 
One of the lists so kept by the judges or inspectors, as aforesaid, 
shall be used by them, on the day or days of making corrections or 
additions, for the purpose of completing the registry for such district. 

140. Revising register— Addition of new names.] § 6. It shall 
be the duty of said board, at their meeting for revising and cor- 
recting said lists, to erase therefrom the name of any person in- 
serted therein, who shall be proved by the oath of two legal voters 
of said district, to the satisfaction of said board, to be non-resi- 
dent of said district, or otherwise not entitled to vote, in said dis- 
trict, at the election then next to be held. Any elector residing in 
said district, and entitled to vote therein, may appear before said 
board and require his name to be recorded on said alphabetical 
list. Any person so requiring his name to be so entered on said 
lists, shall make the same statement as to the street and number 
thereof, and where he resides, required by the provisions of this 
act of persons offering their votes at elections, and shall be subject 
to the same penalties for refusing to give such information, or for 
falsely giving the same, and shall also be subject to challenge, 
either by the judges or inspectors, or either of them, or by any 
other elector whose name appears on said alphabetical list ; and 
the same oaths may be administered by the judges or inspectors 



436 ELECTIONS. [DIV. VIIL 

as now provided in case of persons offering to vote at an election 
and in case no challenge is made of any person requiring his name 
to be entered on said alphabetical list, or in case of challenge, ii 
such person shall make oath that would entitle him to vote in case 
of challenge at an election, then the name of any such person shall 
be added to the alphabetical poll list of the last preceding year.(l) 

141. Copies of register— Filing— Deliver to judges—Toting— 
Swearing in vote, etc.] § 7. After said lists shall have been fully 
completed, the said board shall, within three days thereafter, cause 
two copies of the same to be made, each of which shall be certified 
by them to be a correct list of the voters of their district ; one of 
which shall be filed in the office of the town clerk of towns, and 
in the office of city clerks of cities ; and one of which copies shall 
be delivered to said judges or inspectors. It shall be the duty of 
the said judges or inspectors so receiving such list, carefully to 
preserve the said list for their use on election day, and to desig- 
nate two of their number, at the opening of the polls, to check 
the name of every voter voting in such district whose name is on 
the register. No vote shall be received at any state election in 
this state, if the name of the person offering to vote be not on 
the said register made on the Tuesday preceding the election, un- 
less the person offering to vote shall furnish to the judges of the 
election his affidavit, in writing, stating therein that he is an in- 
habitant of said district and entitled to vote therein at such elec- 
tion, and prove by the oath of a householder and registered voter 
of the district in which he offers to vote, that he knows such per- 
son to be an inhabitant of the district, and if in any city, giving 
the residence of such person within said district. The oath may 
be administered by one of the judges or inspectors of the election, 
at the poll where the vote shall be offered, or by any other person 
authorized to administer oaths, but no person shall be authorized 
to receive compensation for administering the oath. Said oath 
shall be preserved and filed in the office of the town or city clerk, 
or in case there be no clerk, then said oath shall be filed with and 
preserved by the judges or inspectors of the proper district. Any 
person may be challenged, and the same oaths shall be put as now 
are or hereafter may be prescribed by law.(2) [As amended by act 
approved March 27, 1874 ; in force July 1, 1874 

(1) Where a person votes at an election without having been registered, ane 

without any proof of right, if it does not appear he was challenged, or any objection made to his 
voting, the presumption must be that he was a legal voter, and so known to the judges. Dale v 
Irwin, 78 111. R., 171. 

(2) "Under this act, a person who has not been registered as a voter must not 
only show by his own affidavit that he is an inhabitant of the district in which he offered his 
vote, but he must, in addition, establish such fact by the affidavit of a "householder and regis- 
tered voter" of such district. In such case the fact that the person so offering his vote was well 
known to the judges of the election, who knew that he resided in the district, and had previ- 
ously been in the habit of voting therein, does not dispense with the proof required by the stat- 



DIY. VIII.] REGISTRATION OF VOTERS. 437 



142. Entry on register by clerks— Non-registered voter— Pen- 
alty.] § 8. The clerks at each poll, in addition to the duties now 
prescribed by law, shall enter on the poll list kept by them, in 
columns prepared for that purpose, opposite the name of each 
person voting, the same statement or minute as hereinbefore re- 
quired of the board in making the registry ; but such entry is not 
to be made by them if the registry contains correctly the name 
and residence of such voter ; and in all cases said clerk shall enter 
in a column opposite the name of each person not registered, the 
words "not registered." In cities, every elector, at the time of 
oflering his vote, shall truly state the street in which he resides, 
and if the house, lodging or tenement in which he resides is num- 
bered, the number thereof. And the clerks of the polls, in case 
the name of such elector is not registered, shall truly enter in the 
appropriate column of the poll list, opposite the name of the 
elector, the street in which the elector resides, and the num- 
ber, in case the house, lodging or tenement is numbered ; 
and if the same is not numbered, then the clerk shall enter 
"not numbered" in the column of the poll list for entering 
the number. In case of refusal to make the statement as 
aforesaid, the vote of such an elector shall not be received. 
Any person who shall willfully make any false statement in rela- 
tion thereto, shall be deemed guilty of misdemeanor, and shall, 
upon conviction, be punished with a fine of $50, or by imprison- 
ment in the county jail in the county for a period of ten days, or 
by both such fine and imprisonment. 

143. Poll list and register to be filed.] § 9. After the can- 
vass of the votes, one of said poll list and said register so kept and 
checked, as aforesaid, shall be attached together, and shall, on the 
following day, be filed in the town or city clerk's office (as the case 
may be), in which said district may be, or in case there be no such 
clerk, then such poll list and register shall be filed with and pre- 
served by the judges or inspectors, to be used by the board of regis- 
try in making the list of voters at the next state election ; the other 
of said poll lists and registers, so kept and checked, shall be returned 
to the office of the county clerk in the county in which said district 
may be, at the same time the returns of the election are made. [As 
amended by act approved March 27, 1874; in force July 1, 1874. 

[§ 10 is repealed by act approved March 27, 1874.] 

144. Registers open to inspection.] § 11. The registers 
•shall at all times be open to public inspection, at the office of the 
authorities in which they shall be deposited, without charge. 

145. Compensation.] § 12. That the members of the board 

mte. The requirements of this act, relative to the proof to he made by persons whose names have 
not been registered, are reasonable and within the scope of legislative power, and are not calcu- 
lated to abridge the elective franchise. Byler et al. v Asher, 47 111. R„ 101. 



438 ELECTIONS. [DIV. VIII. 

of registration shall each receive $2 per day for each day actually 
employed in making and completion of the registry, not exceeding 
two days, to be paid to them at the time and in the manner in 
which they are paid their other fees. [As amended by act approved 
March 27J 1874; in force July 1, 1874. 

146. Preserving order.] § 13. The said board shall have and 
exercise the same power in preserving order at their meetings, under 
this act, as are given to judges or inspectors of election for preserv- 
ing order on election days ; and vacancies in said board shall be fill- 
ed in the same manner that vacancies are now filled at elections.(l) 

147. Fraudulent registration, false swearing, etc.] § 14. 

Any person who shall cause his name to be registered in more than 
one election district, or who shall cause his name to be registered, 
knowing that he is not a qualified voter in the district where said 
registry is made, or who shall falsely personate any registered 
voter, and any person causing, aiding or abetting any person, in 
any manner, in either of said acts, shall be punished, for each and 
every offense, by imprisonment in the state prison for not less- 
than one year. All intentional false swearing before said board 
of registration shall be deemed willful and corrupt perjury, and, 
on conviction, punished as such. If any member or officer of said 
board shall willfully violate any of the provisions of this act, or be 
guilty of any fraud in the execution of the duties of his office, he 
shall be punished, for each and every offense, by imprisonment in 
the state prison for not less than one year.(2) 

[§ 15 and 16 are repealed by implication, the acts to which they 
refer being repealed. § 17 was only of temporary effect.] 

148. Blanks to be furnished.] § 18. The necessary blanks 
for making the registers required by law, shall be prepared by the 
secretary of state, and transmitted to the person entitled to receive 
them, in the same manner that blank returns of elections are now 
transmitted. 

[§ 19 is repealed by implication, the act to which it refers being; 
repealed.] 

149. Time act takes effect.] § 20. This act shall be in force 
from and after its passage. 

(1) See ante, p. 407 § 44. 

(2) Members of tlie board of registry are not liable to indictment for refusing 
to insert the name of a voter upon the list, if they act honestly and. in the exercise of their best 
judgment. State v. Smith, 18 N. Hamp. R., 91. 

And an information against the board of registry for refusing to put a voter's name on the list,. 
should allege that they knew his right to vote. State v. Daniels, 44 N. Hamp. R., 383 ; Lombard v. 
Oliver, 7 Allen (Mass.) R., 155. 

An action will not lie against the judge of an election for refusing the vote 
of a person who was not registered as a voter, and who failed to comply with the requirements- 
of section 7 of the registry act, relative to the proof to be made in such cases. Nor will the fact 
that such refusal was placed on grounds not tenable change their liability. Byler et ak v. Asher^. 
47 111. R., 101. 



DIV. IX.] COUNTIES — ALTERATION OF COUNTY LINES. 439 



DIVISION IX. 

COUNTIES. (1) 

AN ACT to revise the law in relation to counties. [Approved and in force March 31, 1874. 

Rev. Stat. ch. 34.] 

BOUNDARIES AND JURISDICTION. 

Section. 

1. Boundaries. 

2. Jurisdiction over rivers. 

3. Jurisdiction over Lake Michigan. 

1. Boundaries.] § 1. That the boundaries of the several 

counties of this state shall remain as now established until the 
same be changed according to law. 

2. Jurisdiction over rivers.] § 2. Each county bounded by 
either the Mississippi, Ohio or Wabash river shall have jurisdic- 
tion over such river to the extent it is so bounded, which juris- 
diction may be exercised concurrently with the contiguous states 
bounded by such river. [E. S. 1845, p. 133, § 21; L. 1849, p. 
134, § 1, 2. 

3. Jurisdiction over Lake Michigan.] § 3. Each of the coun- 
ties bordering on Lake Michigan shall have jurisdiction over said 
lake eastwardly, to the east line of the state. 

ALTERATION OF COUNTY LINES. 
Section. 

4. Petition to county board— Election ordered. 

5. Notices of election. 

6. Form of ballot— Effect of vote. 

7. Restrictions. 

8. Adjustment of debts. 

9. When territory released. 

10. When elections at discretion of county board. 

4. Petition to county board— Election ordered.] § 4. When a 
majority of the legal voters, residing upon any territory, not less 
than half of one congressional township, shall petition the 
county board of their own county, and also of the county to which 
they desire such territory to be transferred, for leave to have 
such territory transferred to such county, it shall be the duty of 
the several county boards so petitioned to order an election for 

(1) The present law relating to counties is a complete revision of the whole 
law relating to the same, and although it contains no express words of repeal, it must be re- 
garded as a repeal of all other laws on the subject. Devine v. Board of Com'rs, of Cook Co., 84 
111. R. s 590. 



440 COUNTIES. [DIV. IX. 

such purpose in their respective counties, to be held within 
three months from the time of receiving such petition ; which 
election shall be governed by the laws relating to general elec- 
tions, and returns of said election shall be made to the secretary 
of state as for county officers. [See Const., art. 10, § 3, p. 76. 

5. Notices of election.] § 5. Notices of such election shall 
contain a description of the territory proposed to be transferred, 
the names of the counties from and to which such transfer is in- 
tended to be made, and shall be posted as required for general 
elections. 

6. Form of ballot— Effect of vote.] § 6. The ballots used in 
the said elections may be in the following form, to-wit : "For 
transferring territory," and "Against transferring territory," 
when, if a majority of the voters voting upon said question in 
the county from which said territory is proposed to be taken, and 
a majority of the voters of the county to which the same is pro- 
posed to be transferred, shall be "For transferring territory," 
then the said territory shall be transferred to and become a part 
of the county to which it is proposed to transfer the same, on 
and after the first day of March succeeding such elections, and 
shall be subject to all the laws, rules and regulations thereof: 
Provided, that all assessments and collection of taxes, and judi- 
cial or other official proceedings commenced prior to said first 
day of March, shall be continued, prosecuted and completed, in 
the same manner as if no such transfer had been made : And, 
provided further, that all township or precinct officers within 
said transferred territory shall continue to hold their respective 
offices within the county to which they may be transferred, until 
their respective terms of office expire. 

7. Restriction.] § 7. No county shall be reduced, under the 
provisions of this act, to less contents than 400 square miles ; 
nor shall any county line be made to pass within less than ten 
miles of the county seat of the county from which territory is 
so transferred. [See Const., art. 10, § 1, p. 76. 

8. Adjustment of debts.] § 8. No territory transferred under 
the provisions of this act shall be released from the payment of 
its proportion of the debts of the county from which such terri- 
tory is transferred ; and such proportionate indebtedness from 
such transferred territory shall be collected by the county to 
which such territory is transferred, at an equal or greater rate 
than is levied and collected in the county from which such terri- 
tory was transferred — such rate to be ascertained by the certifi- 
cate of the county clerk of said last named county, and when so 
collected, to be paid over to the county entitled thereto. See 
Const., art. 10, § 3, p. 76. 



DIY. IX.] NEW COUNTIES. 441 

9. When territory released.] § 9. When the county to which 
such territory is transferred shall also be indebted, the county 
board of such county shall release such transferred territory from 
the payment of such indebtedness to an amount equal to that 
which said territory is required to pay to the county from which 
it was transferred. 

10. When elections at discretion of county board.] § 10. 
When a majority of the legal voters of any territory, less than half 
of one congressional township, shall petition the county boards as 
provided in section four of this act, the said county boards may, in 
their discretion, order elections to be held as herein provided ; and 
in any case where elections have been held under this act, and the 
result has been adverse to the petitioners, it shall be in the discre- 
tion of the said boards to order another election, on a petition to 
transfer the same territory, within three years from the time of 
holding such former election. 

NEW COUNTIES. 
Section. 

11. Petition to county boards — Election. 

12. Certificate of result to secretary of state — Notice to governor — 

Election-T-Commission — Term of office — Duties. 

13. Justices, etc., continued in office. 

14. Canvass and return of votes. 

15. Oath of office — Organized— Circuit court. 

16. Transfer of suit — Lien of judgments, etc. 

17. Adjustment of property and debts. 

18. Commissioner to copy records. 

19. Duty of such commissioner. 

20. Further duties — Evidence. 

21. Fixing county seat. 

11. Petition to county board— Election.] § 11. "Whenever it 
Is desired to form a new county out of one or more of the then 
existing counties, and a petition praying for the erection of such 
new county, stating and describing the territory proposed to be 
taken for such new county, together with the name of such pro- 
posed new county, signed by a majority of the legal voters resid- 
ing in the territory to be stricken from such county or counties, 
shall be presented to the county board of each county to be affec- 
ted by such division, and it appearing that such new county can 
be constitutionally formed, it shall be the duty of such county- 
board or county boards to make an order providing for the sub- 
mission of the question of the erection of such new county to a 
vote of the people of the counties to be affected, at the next suc- 
ceeding general election for the election of members of the general 
assembly, of which the notice shall be given, the votes canvassed, 
and the returns made as in case of election of county officers or 



442 COUNTIES. [DIV. IX. 

members of the general assembly ; and the form of the ballot to bo- 
used in the determination of such question shall be as fohews: 
"For new county," and "Against new county."(l) 

12. Certificate of result to secretary of state— Notice to gov- 
ernor — election, etc.] § 12. If it shall appear that a majority of 
all the votes cast at such election, in each of the counties interes- 
ted, is in favor of the erection of such new county, the county 
clerk of each of said counties shall certify the same to the secre- 
tary of state, stating in such certificate the name, territorial con- 
tents and boundaries of such new county ; whereupon the secretary 
of state shall notify the governor of the result of such election, 
whose duty it shall be to order an election of county officers for 
such new county, and at such time as he shall designate, and he 
may, when necessary, fix the place [of] holding election, notice of 
which shall be given in such manner as the governor shall direct. 
At such election the qualified voters of said new county shall elect 
all county officers for said county, except as hereinafter excepted, 
who shall be commissioned and qualified in the same manner as 
such officers are in other counties in this state, and who shall con- 
tinue in office until the next general election for such officers, and 
until their successors are elected and qualified, and who shall have 
all the jurisdiction and perform all the duties which are or may 
be conferred upon such officers in other counties of this state. 

13. Justices, etc., continued fn office.] § 13. All the justices 
of the peace, constables, and other township or precinct officers, 

(1") Comities are tlie creatures of legislative will. They are vested with certain 
corporate powers, in order to enable them to perform the duties required of them as part of 
the machinery of the State. The legislature may enlarge, modify or diminish them at any 
time, subject to the restriction of the State Constitution. Laramie Co. v. Albany Co., 92 U. 
S. R., (2 Otto), 307. But the legislature cannot abolish counties, and form their territory 
into one or more counties, nor take territory from one county and add it to another, 
without submitting the act to a vote of the inhabitants affected by such changes; nor can 
a county seat be removed without the affirmative vote of the electors of the county, nor can 
county lines be changed except by the vote of a majority of all the legal voters voting on the 
question. The People v. Marshall, 12 111. R., 391 ; The People v. Warfield, 20 111. It. 160. An organ- 
ized county may be disorganized by the legislature. State v. McFadden, 23 Minn. R., 40. 

Counties are public corporations, and are completely under legislative con- 
trol. They can be changed, modified, enlarged, restrained or repealed, to suit the ever varying 
exigencies of the state, subject to the constitution. Coles v. Madison Co., Breese R., 154; The 
People v Wren, 4 Scam. R, 269. 

A county may be created and nave existence as such, notwithstanding it has no 
county officers. And where a new county is created by setting off for that purpose organized 
townships from existing counties; the supervisors of these townships would be supervisors in 
the new county, and their powers would continue under the general law regulating the same, 
unless there be some provision to the contrary in the law creating the new county. Pice v. Rud- 
diman, 10 Mich R., 125. 

In determining the area of a county, oodles of water lying within its boun- 
daries are to be computed and considered as integral parts thereof. Powers ex rel., etc., v. Larra- 
bee, 1 Wis. R., 200. 

The government surveys are to be deemed correct, and a county containing just twenty-five 
townships, according to government survey, is to be deemed prima facie to contain an area of 
exactly nine hundred square miles. Brayton ex rel., etc., v. Merriman, 6 Wis. R., 14. 

Although the legislature, in an act submitting to the electors the question of a division of 
their county, may have prescribed a form for the ballot, yet all other ballots not in that precise - 
form are not thereby excluded; but when the intention of the elector can be clearly ascertained 
from the ballot itself, or by the aid of other competent evidence, such intention, should have 
effect, and the vote be counted. Spaulding ex rel., etc., v. Elwood, 12 Wis. R. 551. 



DIV. IX.] NEW COUNTIES. 448 

who were previously elected and qualified in the county or coun- 
ties from which such new county has been formed, whose term of 
office shall not have expired at the time of said election, and 
whose residence shall be embraced within the limits of said new 
county, shall continue in office until their terms of office shall 
expire, and until their successors shall be elected and qualified. 

14. Canvass and return of votes.] § 14. The votes for the 
county officers of said new county shall be canvassed, and returns 
made, by the county clerk or county clerks of the county or coun- 
ties from which such new county was formed, as provided by law 
in other cases. 

15. Oath of office— Organized— Circuit court.] § 15. The oath 
of office may be administered to the several county officers of such 
new county by any person authorized by law to administer oaths ;. 
and as soon as said county officers are duly qualified, the county 
shall be regarded as legally organized, and for judicial purposes 
shall be deemed and taken as belonging to the circuit in which 
said new county, or the greater part thereof, is embraced, and 
terms of the circuit court shall be held at such place in said new 
county as the county board thereof shall designate, until the county 
seat thereof shall be permanently located. The times of holding 
such court shall be appointed by the judge thereof, until otherwise 
provided by law. 

16. Transfer of suits, etc., lien of judgments, etc.] §16. The 

courts of any county or counties from which such new county is 
erected may, by proper order, transfer any suit or other legal pro- 
ceeding affecting real estate in such new county, to the proper 
court of such new county, or may transfer any suit and all papers 
and records pertaining thereto to such new county, when all the 
parties thereto are residents of such new county; but all judg- 
ments and other liens in the county or counties from which such 
new county was erected, shall have the same effect as if no new 
county had been erected. 

17. Adjustment of property and debts.] § 17. All the prop- 
erty, both real and personal, and all debts, liabilities and choses 
in action of every kind, belonging to the county or counties from 
which such new county was formed, shall be divided by the several 
county boards of the counties interested, between the county or 
counties from which such new county is formed and the new 
county, in proportion to the assessed value of property for the 
last preceding year which has been taken from such original 
county or counties and carried to such new county ; and if such 
boards cannot agree upon such division they may refer the matter 
of difference to arbitrators, or the rights to such property may be 
settled by a bill in chancery, filed by either party for that purpose. 



444 COUNTIES. [DIY. IX. 

In case the said property cannot be divided or removed, the county 
receiving the same shall pay to the other a proportionate value 
for the same. 

18. Commissioner to copy records.] § 18. The county board 
of such new county shall, at any session of said board, by an order 
to be entered of record, appoint some competent person a com- 
missioner, for the purpose hereinafter expressed, who shall take an 
oath of office before some person authorized by law to administer 
oaths. Said board shall, at the same time, provide a sufficient 
number of blank books, and deliver them to said commissioner, 
who shall receipt for the same to the county clerk of said county. 

19. Duty of such commissioner.] §19. As soon as said books 
shall be delivered to said commissioner, he shall record in each a 
copy of the order of his appointment and of his oath of office, 
and shall thereupon proceed to transcribe into such books, from 
the records of the county or several counties from which the new 
county is formed, all such deeds, mortgages and title papers of 
every description, with the certificates of acknowledgment thereto, 
and the date of the filing of the same for record, of lands lying in 
said new county which previously were recorded in the counties 
from which such new county was formed ; and there shall be allowed 
said commissioner such sum as his services aforesaid are reasonably 
worth, to be paid out of the county treasury of the said new county. 

20. Further duties — Evidence.] § 20. Said commissioner shall 
note, at the end of each paper he shall transcribe, the book and 
page from which the same was transcribed, and shall make a cor- 
rect double index of said records ; and on the completion of his 
duties, said commissioner shall return said books to the recorder 
of deeds of said new county, with his certificate attached thereto, 
showing that he has complied with the law ; whereupon they shall 
be taken and considered, to all intents and purposes, as books of 
records of deeds, mortgages and title papers for said new county. 
And copies of said record, certified by the officer having the cus- 
tody of the same, shall be evidence in all courts and places, in the 
same manner that copies of records are evidence in other cases, 
and with like effect. 

21. Fixing county seat.] § 21. For the purpose of fixing the 
permanent location of the county seat of such new county, the 
voters of said county shall, at said election for county officers, 
vote for some place, to be designated upon their ballots, for a 
county seat ; upon which ballot shall be written or printed, or 
partly written and partly printed, "For County Seat," after 
which words shall be written or printed the name of the place 
intended for the county seat. The place receiving a majority of 
.all the legal votes cast upon the question shall be the county seat 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 445 

of said county. But if no place shall receive a majority of all. 
the votes cast upon the question, then it shall be the duty of the 
county board of said county to call another election within sixty 
days thereafter, at the several places of holding elections in said 
county, at which election the voters of said county shall proceed 
to vote as before, but shall choose from the two places having 
the greatest number of legal voters at the former election ; and the 
place having the majority of all the legal votes cast at the second 
election shall be the permanent county seat of said county.(l) 

OF THE POWERS AND DUTIES OF COUNTIES AND COUNTY BOARDS. 
Section. 

22. Corporate name of county. 

23. By whom corporate powers exercised. 

24. Enumeration of powers of county : 

1. To purchase and hold property. 

2. To sell and convey property. 

3. To make contracts and do other necessary acta. 

4. To prevent cruelty to animals. 

25. Powers of county board : 

1. Care, etc., of property of county. 

2. Manage county funds and business. 

3. Settle accounts of county. 

4. Provide a work house. 

5. Provide for an insane asylum. 

6. Levy taxes. 

7. Vacate town plat on petition, etc. 

8. Change name of town plat on petition. 

26. Duties of county board : 

1. Provide a court house, jail, etc — Offices, etc. — Restriction* 

2. Provide fire-proof safes. 

3. Provide books, stationery, etc. 

4. Publish statement of proceedings. 

5. Publish annual financial statement. 

27. Raising tax in addition to constitutional limit. 

28. Issuing bonds and raising additional tax may be included, etc 

29. Former deeds, etc., confirmed. 

30. Contracts, etc. — Rights of county — Suits. 

31. Venue of suits by or against a county. 

32. Jurors and witnesses. 

33. Duty of county board to prosecute and defend. 

34. How judgments against county paid. 

35. Auditing claims against county — Appeal. 

36. Summons against county board on appeal. 

37. Transcript — Filing same. 

38. Time of fixing compensation of county officers. 

39. Funds kept separate. 

40. Issuing county bonds — Election to authorize. 

41. Neglect of duty. 

22. Corporate name of county.] § 22. Each county w\hich 
has heretofore been, or may hereafter be established in this state, 

(1) The question of the location, of a connty seat must be inquired into by a di- 
rect proceeding. It cannot be determined collaterally. Robinson v. Moore, 21 111. R., 135. 



446 COUNTIES. [DIY. IX. 

according to the laws thereof, shall be a body politic and cor- 
porate, by the name and style of "The county of ," and 

by that name may sue and be sued, plead and may be impleaded, 
defend and be defended against in any court of record having 
jurisdiction of the subject matter, either in law or equity, or 
other place where justice shall be administered. (1) [R. S. 1845, 
p. 130, § 1. 



A conveyance of land to a county, in consideration of the location of a county seat at a par- 
ticular place, does not deprive the legislature of the right to remove the same whenever the 
public good shall require a change; nor does such conveyance, if unconditional, give the do- 
ners of the property a right of action for damages sustained in consequence of such removal. 
Even had the doners of the property made an express agreement that the land should revert in 
case of the removal of the county seat, it would not avail them, unless it had been expressed on 
the face of the deed, or in a separate instrument. Such an agreement cannot rest in parole. 
Adams v. Logan Co., 11 111. R., 336 ; Harris v. Shaw, 13 111. R., 456. 

There cannot toe two seperate locations of a county seat at tlie same tims ; 

neither can there be a right of revertii g or returning to a former location, without an express 
law to that effect. Where a county seat is located temporarily at a point for a time mentioned, 
it will there remain for that time, and until a new location is fixed by law; which the legisla- 
ture would have the power to fix, as in the case of organizing a new county. Lord exrel.,etc, v. 
Washington Co., 2 Chand Wis. R., 247. 

Where, by division of a county, or creation of a new one, it is without a county seat, it may be 
established by the legislature without submitting it to the people. Powers ex rel., etc., v. Larra- 
bee, 1 Wis. R., 200. 

Upon the division of an old county, if the old county seat remains within its 
limits, it will continue to be its county seat; but if it falls within the limits of the new county 
it will not thereby become the county seat of that county. Attorney General v. Fitzpalrick, 2 Wis. 
R., 542. 

The result of an election on the question of removal of a county seat may be tested by man- 
damus to compel a county officer to hold his office at the place to which it is alleged to have 
been removed. Meld ex rel., etc., v. Saxton et al., 1 Wis. R., 217; Gates ex rel, etc., v. Fetter, 12 
Id , 567. 

(1) Counties are involuntary quasi corporations; political or civil divisions 
of the State, created by general laws, to aid in the administration of the government. The 
statute prescribes all the duties which counties owe, and impose all the liabilities to which 
they are subject; and unless made so by express legislative enactment, they are not liable to 
persons injured by the wrongful neglect of duty or wrongful acts of their officers or agents done 
in the course of the execution of corporate powers, or in the performance of corporate duties. 
This rule is the same in respect to such other organizations, as townships, school districts and 
road districts. Simonds v. Clay County, 71 111. R., 355. Counties are merely a species of corporation 
with corporate powers, under a condition and a few specified purposes only, but deficient in 
many of the powers incident to the general character ot corporations. Goodnow v. Com'rs Ram- 
sey Co., 11 Minn. E., 41. 

Counties can neither sue nor toe sued at the common law. Their rights and lia- 
bilities depend on statutory enactment. Schuyler Co. v. Mercer Co., 4 Gilm. E„ 20. 

An action for money had and received, is maintainable against a county to 
recover money loaned to the county board and expended for the benefit of the county, although 
the contract of loan was invalid from want of authority on the part of the board. Wirtz v. 
Ormsby Co., 1 Nev. E., 370. 

It is held, that no action lies upon a county warrant or order, but that suit should be brought 
upon the claim for which the warrant was given. Allison v. Juniata Co., 50 Penn. St. E., 351. 

All actions against a county must be commenced and prosecuted to judgment and execution 
in the circuit court of that county. All actions wherein a county is plaintiff must be com- 
menced and prosecuted to judgment in the county of the defendant. Ordinarily a law which, 
in general terms, speaks of plaintiffs and defendants, applies to persons only, and does not ap- 
ply to states, counties and municipal corporations, unless expressly named. Schuyler Co. v. 
Mercer Co., 4 Gilm. E., 20. 

The declaration in an action against a county to recover for the care and medical treatment 
of sick persons, should state that they were indigent, and residents of the county. Johnson v. 
Santa Clara Co., 28 Cal. E., 545. 

A county toeing a putolic corporation, subject to the control of the legislature; 
the legislature may release a penalty recovered in a popular action brought for the benefit of a 
county. Haliday v. People, 5 Gilm. E., 214. See Coles v. Madison Co., Breese E., 115. 

Declarations of members of the county board are not evidence against their 
county, unless made while officially representing the county, and while engaged in the transac- 
tion respecting which the declaration is made. La Salle Co. v. Simmons, 5 Gilm. R., 513. 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 447 

23. By whom corporate powers exercised.] § 23. The powers 
of the county, as a body corporate or politic, shall be exercised 
by a county board, to-wit : In counties under township organiza- 
tion (except the county of Cook,) by the board of supervisors, 
which shall be composed of the town and such other supervisors 
as are or may be elected pursuant to law ; in the county of Cook, 
by a board of county commissioners, pursuant to section 7, arti- 
cle 10 of the constitution; in counties not under township or- 
ganization, by the board of county commissioners. (1) L. 1861, 
p. 236, § 4. 

A book kept in the clerk's office of the county commissioners, under their direction, respect- 
ing the affairs of the county, though not a public record, is prima facie evidence against the 
county of the facts stated therein. Id. 

An execution cannot toe issued, on a judgment against a county. Knox Co. v. 
Arms, 22 111. R., 175. See § 34, p. 454. Nor upon a decree in chancery. King etal. v. McJDrew et al., 
31 111. R., 418 

A county has not the capacity to he sued, except it is conferred by special statute ; 
and when that capacity is so conferred, the mode pointed out by the statute must be strictly pur- 
sued. Counties can be sued only in the name of the eounty. If sued in any other name it is 
•error, and there is no necessity of a plea of misnomer, as in ordinary cases. * County of Bock Is- 
land y. Steele, 31 111. R., 543. The action should be brought against the county, and' not against 
the individual members of the county board. Magee v. Cutler, 43 Barb. R., (N. Y.) 239. 

The county Iboard having general authority to commence suits, may employ 
counsel in such suits, and even though an error is made as to their having a cause of action, the 
counsel have a claim against the county for their reasonable charges ; and if the supervisors 
allow such accounts, and issue an order for the amount, the court will not interfere, by injunc- 
tion, to prevent payment of such order. Gillespie v. Broas, 23 Barb. R., (N. Y.) 370. 

The law which 'gave jurisdiction over county affairs to the board of supervisors, went into 
operation on the first Tuesday in April, 1850. The county corporation was not abolished by this 
law. Its name was changed, but suits instituted in the old name did not therefore abate. 'Town 
of Ottawa v. County of LaSalle, 11 111. R. , 654. 

Counties, like individuals, will he held to their liabilities, and will not be per- 
muted to avoid them because of unimportant irregularities in the action of their officers. John- 
son v. Stark Co., 24 111. R„ 75. 

A county is not liable at common law nor by our statute, for damages caused by the 
defective condition of a bridge. Hedges v. County of Madison, 1 Gilm. R., 567. Even though the 
legislature has made it the duty of the county to keep it in repair. Reardon v. St. Louis Co., 36 
Mo. R., 555. 

A county is not liable for damages sustained by a party from such a construction of a bridge 
that the water washed off large quantities of the plaintiff's land. Crowell v. Sonoma, 25 Cal. 
R., 313. 

A county is not liable for fees in a criminal case, to the county clerk when the 
same cannot be collected of the criminal, or in case of acquital, although the law allows county 
clerks to charge and collect fees as clerks of circuit courts. Satterfield v. County of Jefferson, 85 
111. R., 347. 

(1) The county board possesses only such powers as are conferred by law. It has 
no power to appropriate any portion of the county funds to the use or benefit of a circuit judge, 
as compensation to him in that capacity. Where county authorities appropriate the county 
funds for such purpose, a court of chancery will afford preventive relief by injunction. Perry 
et al. v. Kinnear et al., 42 111. R., 160 ; Beauchamp v. Kankakee Co., 45 111. R., 274. 

Under the act providing for an election upon the question of the removal of a county seat, 
and providing that in the event of the vote being in favor of removal, the board of supervisors 
shall erect or procure suitable buildings for the public offices, and a suitable place for holding 
courts, the board of supervisors may, in their official capacity, accept a contract of subscription 
from individuals, to be paid on condition the vote shall be favorable to removal, for the purpose 
of aiding in the erection of the public buildings contemplated by the act, and such a subscription 
will be valid and bindin g upon the parties making it. Thompson v. Board of Supervisors, etc., 40 
111. R., 380. 

Where a clear legal duty rests upon the county board, being a matter in which 
they have no discretion, mandamus will lie. and is the proper remedy to compel them to per- 
form that duty. Boyce v. Supervisors of Cayuga, 20 Barb. R., 294. 

County boards cannot bind their counties by an act not within the limits of the express pow- 
ers conferred upon them by statute. They cannot allow a claim on any notions of their own as 
to its equity. Chemung Canal Bank v. Supervisors of Chemung, 5 Denio., R., 517. 

Individual members of the county board can not, unless authorized, bind the body by express 



448 COUNTIES. [BIT. IX. 

24. Powers.] § 24. Each county shall have power :(1) 

First — To purchase and hold the real and personal estate nec- 
essary for the uses of the county, and to purchase and hold, for 
the benefit of the county, real estate sold by virtue of judicial 
proceedings in which the county is plaintiff. (2) 

Second — To sell and convey or lease any real or personal estate 
owned by the county. [See Kev. Statutes, ch. 30, § 16. 

Third — To make all contracts and do all other acts in relation 
to the property and concerns of the county, necessary to the ex- 
ercise of its corporate powers.(3) 

Fourth — To take all necessary measures and institute proceed- 
ings to enforce all laws for the prevention of cruelty to animals. 
[E. S. 1845, p. 132, § 15; p. 135, § 36. 

25. Powers of county boards.] § 25. The county boards of the 
several counties shall have power :(4) 

promises. A corporation can only be bound by joint and corporate acts, done as a body, or by 
its authorized agent. The county board of supervisors have no power to act individually. They 
can only act as a body. Bouton et al. v. Board of Supervisors, 84 111. R., 384. 

Th.2 powers of a county are vested in a county board as a corporate entity, 
and not in the commissioners as individual officers. Therefore before a county board can 
act it ,aust be convened in legal session, either regular, adjourned or special; and a casual 
meeting of a majority of the commissioners does not create a legal session. Paola etc., R. R. Co. 
v. Anderson Co., 16 Kansas R., 302. 

By the constitution, the right of a county to adopt township organization is made to depend 
expressly upon the affirmative vote of a majority of all within the county entitled to vote on 
the question. The power of the county commissioners over the county business continues un- 
til the organization is adopted by such vote. People ex rel. v. Brown et al., 11 111. R., 478. 

The chairman of the county board has no authority to hire premises or perform acts and bind 
the county thereby other than that conferred by the board. Gardner v. Board of County Com'rs 
21 Minn. R., 33. 

(1) A county may employ an agent to transact any business which concerns the 
county, and the agent. may recover a fair compensation for his services. Webster Co. v Taylor 
19 Iowa R., 117; Hannibal etc., R. R. Co. v. Marion Co., 36 Mo. R.,294, 

(2) A grant to the supervisors for the use of the inhabitants of a particular 
town, is void; for, if the supervisors are a corporation, they have no capacity to take and hold 
lands as supervisors for the use of the inhabitants of a town, or for any other use or purpose 
than that of the county which they represent. Supervisors are vested with special powers and 
for special purposes only— they cannot act but by special authority. Lynch v. Hartwell, 8 Johns 
R., 422. 

A conveyance of land to a county, in consideration that the county seat be lo- 
cated at a particular place, does not deprive the legislature of the power to remove the county 
seat. The doners of land, if the conveyance be unconstitutional, cannot recover damages for 
such removal. An agreement that the land should revert, in case of removal, should be ex- 
pressed in the conveyance, and cannot rest in parol. Adams et al. v. Logan Co., 11 111. R. 336. 

(3) A contract made by the proper authorities of the county, with a physician* 
to render professional services to a pauper, and not entered on record, may be proved by parol. 
One who at the request of such authorities rendered aid to a person acknowledged by them as a 
pauper, need not prove the pauper legally entitled to such aid in order to enable him to recover 
for such services. Vermilion Co. v. Knight, 1 Scam. R., 97. 

Counties are not liable to pay intei-est on their contracts, except in pursuance 
of an express agreement to do so. But in actions originating in torts, they are liable to the 
same extent as private persons. County of Pike v. Hosford, 11 111. R., 170. 

(4) When the county board of a county have neglected to perform any duty 
required of them at their annual meeting, they may be compelled by mandamus to meet again 
and perform it. They cannot by their neglect nullify a statute imposing duties upon them. 
This was a case where the board of supervisors of Chenango county, in the State of New York, 
at their annual meeting in 1851, neglected to issue warrants for military commutation, which it 
was their duty to do by law at that meeting. The Supreme Court issued a mandamus requiring 
them to meet and issue the warrants. Held, that the mandamus was properly issued. People v. 
Supervisors of Chenango, 4 Seld R., 317. 



DIY. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 449 

First — To take and have the care and custody of all real and 
personal estate owned by the county. 

Second — To manage the county funds and county business, ex- 
cept as otherwise specifically provided .(1) 

Third — To examine and settle all accounts against the county, 
and all accounts concerning the receipts and expenditures of the 
county. (2) 

(1) The revenues of a county are not the property of the county in the sense in 
which the revenue of a private corporation is regarded; and the power of the legislature to 
direct its application is plenary, and when the legislature directs the application of its revenue 
to a particular purpose, or its payment to any party, it is a duty imposed and an obligation 
created upon the county. Board of Supervisors of, etc. v. Springfield, 63 111. R., 66. 

If a specific fund be given by the legislature to the county, to be held in trust for certain 
purposes, and the fund be diverted from its purpose and mixed with the general funds of the 
county, a mandamus may be awarded, directing the payment of the fund to the proper pur- 
poses out of the general fund's of the county. Pike Co. v. State, 11 111. R., 202. 

The law does not give the county hoard authority to appropriate the county 
funds in aid of the construction of toll bridges, or to aid a private corporation in the construc- 
tion of a free bridge. And a bill to enjoin them from so misapplying the funds of the county is 
a proper remedy and will be sustained. Cotton et al. v. Hanchelt et al., 13 111. R., 615. 

The county hoard cannot borrow money or issue a warrant as collateral security 
for money borrowed. Waitz v. Ormsley Co., 1 Nev. R., 370. 

(2) The power granted to the county hoard to examine, settle and allow all 

accounts chargeable against a county, involves the right to reject, if sufficient reason, in the 
opinion of the board, is not presented for the allowance, People v. Supervisors Duchess Co., 
9 Wend. R., 508. 

It is held in Michigan that a county is not liable to an attorney for defending a prisoner at 
the request of the court when the prisoner is poor and unabie to employ counsel. Bacon v. 
Wayne Co., 1 Mich. R., 461. A county is not liable to the clerk of the circuit court for his fees 
on a scire facias upon a recognizance*. Edgar Co. v. Mayor, 3 Gilm. R., 82. 

But it is the duty of the county to furnish lights and fuel for the use of the office of the clerk 
of the circuit court. He is obliged to keep his office open at all reasonable hours for the accom- 
modation of the public, hence lights and fuel are necessary. The county should likewise pro- 
vide furniture, lights and fuel for the circuit court; and the same may be supplied to the board 
of supervisors for their convenience during their sessions. Board of Supervisors of DeKalb Co. 
v. Beveridge, 16 111. R., 312. 

Neither the state nor county is hound hy law to pay the fees of officers in prosecu- 
tions in behalf of the people where no conviction is had ; and where the defendant is convicted, 
the officers must look to the defendant's estate for their costs and run the risk of losing them if he 
be insolvent. Kitchcll v. Madison Co., 4 Scam. R., 163 ; County of Crawford v. Spenvy. 21 111. R., 
288. The statute expressly makes a county liable for costs where a judgment is rendered against 
a county. See \ 34, p. 454. County of Sangamon v. Brown, 13 III. R., 207. 

After a claim against a county has "been presented to the county hoard for 
allowance, and has been passed upon by that body, the amount determined to be due declared, 
and its payment provided for in the mode prescribed by law, no action will lie against the 
county to recover the same claim, upon the ground that the decision of the board was errone- 
ous in respect to the amount due the plaintiff. (Seldon, J. dissenting.) Martin v. Greene, 29 N. 
Y., (2 Tiffany), R., 645. 

Where an account consisting of a single item of $200 was presented to the county board who 
allowed thereon $100, from which order of allowance the claimant took an appeal, and after- 
wards and before the appeal was determined, he obtained a county order for the $100 so allowed, 
and gave a receipt therefor. Held, that this was a waiver of the appeal, and amounted to a sat- 
isfaction of the claim. Pulling v. Supervisors Columbia Co., 3 Wis. R., 337. Smith, J., dissenting. 

The county hi ard, hy auditing and paying part of a claim presented, is not 
thereby precluded from contesting the residue, even upon a principle which would show the 
former allowance to have been improper. A mandamus will not lie to a board of supervisors, 
to control them in the exercise of their discretion as to the amount at which an account pre- 
sented shall be audited. People v. Supervisors. 1 Hill R., 362. An allowance of part of a claim 
by a board of supervisors imports no acknowledgment of liability of the county thereon. Peo- 
ria Co. v. Roche. 65 111., R., 77. 

In auditing claims against a county the board of supervisors act in a legislative not a judicial 
capacity, and may repeal or reconsider its action when found to be erroneous. It has power, 
therefore, to rescind a resolution auditing and allowing such a claim upon discovery of mis- 
take or error. People v. Supervisors, 65 N. Y. R., 222. 

The hoard of supervisors of the county is not a court, and a petition by a creditor 
to the board, praying an allowance of a claim is not a suit. Garnee v. Brunswick, 1 Hugh. R., 270 

"Where the Board of supervisors had employed a county physician and passed 

29 



450 COUNTIES. [DDT. IX. 

Fourth — To cause to be erected, or otherwise provided, a suita- 
ble workhouse, in which persons convicted of offenses punishable 
by imprisonment in the county jail, may be confined and employed, 
and to make rules and regulations for the management thereof. 
They may contract for the use of the city workhouse when the 
same can satisfactorily be done. 

Fifth — To cause to be erected, or otherwise provided, suitable 
buildings for, and maintain, a county insane asylum, and provide 
for the management of the same. 

Sixth — To cause to be annually levied and collected taxes for 
county purposes, including all purposes for which money may be 
raised by the county by taxation, not exceeding seventy-five cents 
on the one hundred dollars' valuation, and in addition thereto an 
annual tax not exceeding one hundred cents on the one hundred 
dollars, for the purpose of paying the interest and principal of 
indebtedness which existed at the time of the adoption of the 
constitution. (1) 

Seventh — To authorize the vacation of any town plat when the 
same is not within any incorporated town, village or city, on the 
petition of two-thirds of the owners thereof. 

Eighth — To change the name of any town plat on the petition 
of a majority of the legal voters residing therein, when the inhab- 
itants thereof have not become a body corporate. [See " Pau- 
pers," § 28. E. S. 1845, p. 132, § 17, p. 133, § 25 ; L. 1859, p. 129, 
§ 1, 2 ; L. 1869, p. 160, § 1, p. 104, § 2. 

Removal of obstructions from water courses.] The county 
boards of the several counties in this state shall have power to 
cause the removal of, in such manner as 'they may direct, the 
driftwood and other obstructions from the natural water-courses 
in their respective counties. [Act approved May 11, 1877. 

26. Duties of county board.] § 26. It shall be the duty of the 
county board of each county : 

First — To erect or otherwise provide when necessary, and the 
finances of the county will justify it, and keep in repair, a suitable 
court house, jail, and other necessary county buildings, and to 
provide proper rooms and offices for the accommodation of the 
several courts of record of the county, and for the county board, 
county clerk, county treasurer, recorder, sheriff, and the clerks of 

a resolution not to pay for medical services rendered by other physicians except in certain 
cases, appellee had been employed by the supervisor of one township as overseer of the poor, 
and told that he did not have the power to bind the county. Held, th,at under the statute the 
board of supervisors had power to make rules for such cases, and that the power of the over- 
seers of the poor was limited by such rules, and that the county was not liable. County of De- 
Witt v Wright, Sup. Ct. 111., Springfield, June 20, 1879. See " Paupers," ante, p. 270. 

(1) A resolution of a board of supervisors providing for raising money to be 

paid over to the towns without any definition of purposes, and to be spent under the direction 
of a town officer, is unauthorized and void. Attorney General v. Supervisors of Bay Co., 34 Mich. 
R.,47. 



DIV. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 451 

said courts, and to provide suitable furniture therefor. But in 
counties not under township organization, no appropriations shall 
be made for the erection of public buildings, without first submit- 
ting the proposition to a vote of the people of the county, and 
said vote shall be submitted in the same manner and under the 
same restrictions as provided for in like cases in section 27 of this 
act ; and the votes therefor shall be " For taxation," specifying the 
object, and those against shall be " Against taxation," specifying 
the object .(1) 

Second — To provide and keep in repair, when the finances of 
the county permit, suitable fire-proof safes or offices for the 
county clerk, county treasurer, recorder, sheriff and clerks of said 
courts. 

Third — To provide suitable books and stationery for the use of 
the county board, county clerk, county treasurer, recorder, sheriff, 
coroner, and the clerks of said courts.(2) 

Fourth — To cause to be published at the close of each annual, 
regular or special meeting of the board, a brief statement of the 
proceedings thereof in one or more newspapers published in the 
■county, in which shall be set forth the name of every individual 
who shall have had any account audited and allowed by said board, 
and the amount of said claim as allowed, and the amount claimed, 
and also their proceedings upon the equalization of the assessment 
roll : Provided, that no publication in a newspaper shall be re- 
quired unless the same can be done without unreasonable expense. 

Fifth — To make out at its meeting in September, annually, a full 
and accurate statement of the receipts and expenditures of the 

(1) County Boards have, under the statute, the sole power to determine the 

size, cost and quality of the materials of which jails should he huilt. People ex rel. v. Board of 
Supervisors of LaSalle Co., 84 ILL. R., 303. 

(2) The law provides that the clerks of the circuit and county courts shall 
procure the proper books and stationery for their respective offices, and it is the duty of the 
county board to provide the clerks of the circuit and county courts the necessary rooms and 
office furniture, vaults or other means for the safe keeping of the archives of the circuit and 
county clerks, and it is the duty of the county board to make allowances for the same, and for 
articles of stationery necessary for their respective courts, out of the county treasury from time 
to time. Stationery includes necessary blanks for use. It ordinarily includes all articles usu- 
ally sold by stationers. Rev. Stat., 263, § 19, 20. Knox Co. v. Arms, 22 111. R., 175. The county 
may appoint an agent to purchase stationery for these offices, but if he fails to keep them prop- 
erly supplied the clerks may make the purchases themselves and bind the county. Mc Claughey 
v. Hancock Co., 46 111. R., 356. 

Sheriffs are not compelled to keep their offices at the county seat as the clerks are, and there 
being no statute warranting it, they cannot be allowed pay from the county for lights and fuel 
for their offices. Armsby v. Supervisors of Warren Co., 20 111. R., 126. On the subject of sheriff's 
fees for mileage in serving grand juries, see Bryner v. Board of Supervisors, 24 111. R., 195. 

It is held in Wisconsin. Jefferson Co. v. Besley, 5 Wis. R.. 134, that the necessary lights and fuel 
for keeping of the several county offices in a suitable condition for the transaction of business, 
are a proper county charge ; but this applies only to those officers who are entitled by law to keep 
their offices open for the accommodation of the public. Board of Supervisors of BeKalb Co. v. 
Beveridge, 16 111. R., 312. Under this construction sheriffs would no doubt be allowed for nec- 
cessary fuel and lights for the county jail. Opinion Att'y Gen. Colville, Minn., July 7, 1867. 

The expense of Keeping property of a county in repair, is a proper subject of 
■charge against the county, as, also the expense of cleaning and painting court rooms. And it 
is held in New York that an allowance of the account is final and conclusive as regards amount. 
People v. Stout, 23 Barb. R„ 349. 



452 COUNTIES. [DIV. IX. 

preceding year, which statement shall contain a full and correct 
description of each item, from whom and on what account re- 
ceived, to whom paid, and on what account expended, together 
with an accurate statement of the finances of the county at the 
end of the fiscal year, including all debts and liabilities of every 
description, and the assets and other means to discharge the same ; 
and within thirty days thereafter to cause the same to be posted 
up at the court house door, and at two other places in the county,, 
and published for one week in some newspaper therein, if there 
is one, and the same can be done without unreasonable expense. 
[E. S. 1845, p. 134, § 34, 35 ; p. 135, § 41 ; p. 136, § 44, 45 ; L. 1845, 
p. 573, § 1. 

27. Raising tax in addition to constitutional limit.] § 27* 

Whenever the county board shall deem it necessary to assess 
taxes, the aggregate of which shall exceed the rate of seventy-five 
cents per hundred dollars' valuation of the property of the county, 
except where such excess is used for the payment of indebtedness 
existing at the adoption of the constitution, the county board may, 
by an order entered of record, set forth substantially the amount 
of such excess required, and the purpose for which the same will 
be required, and if for the payment of interest or principal, or 
both, upon bonds, shall in a general way designate the bonds and 
specify the number of years such excess will be required to be lev- 
ied, and provide for the submission of the question of assessing 
the additional rate required to a vote of the people of the county 
at the next election for county officers after the adoption of the 
resolution ; and it shall be the duty of the county clerk in his elec- 
tion notice to give notice of such submission. The votes therefor 
shall be, "For additional tax," and those against shall be 
"Against additional tax." The votes shall be canvassed and 
returned the same as those for county officers, and if a majority of 
the votes cast upon the question are "For additional tax," then the 
county board shall have power to cause such additional tax to be 
levied and collected in accordance with the terms of such resolution, 
and the money so collected shall be kept as a separate fund and dis- 
bursed only for the purposes for which the same was raised : Provi- 
ded, any surplus that may remain after the payment of all demands 
against said fund may be used for other purposes. (1) [See § 72 ; 
Const., art. 9, § 8, p. 75. 

28. Issuing bonds and raising tax may be included.] § 28. 
If it shall be deemed necessary to submit to a vote of the people 
at the same election the question of issuing bonds and the raising of 

(1) On the subject of taxation "by county authorities the Constitution declares Art. 
9, Sec. 8, county authorities shall never assess taxes, the aggregate of which shall exceed seven- 
ty-five cents per one hunched dollars valuation, except for the payment of indebtedness exist- 
ing at the adoption of this constitution, unless authorized by a vote of the people of the county 



OIV. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 453 

such additional tax, the same ma} 7 be included in one proceeding, and 
in that case the votes in favor of issuing such bonds and levying 
such additional tax shall be " For bonds and additional tax," and 
those against shall be, "Against bonds and additional tax." 

29. Former deeds, etc., confirmed.] § 29. All deeds, grants and 
conveyances heretofore rn^de, and duly acknowledged and recorded 
as other deeds, conveying any lands, tenements or heriditaments 
to any county or to the inhabitants of any county, or to the county 
-commissioners, county commissioners' court, county court, board 
of supervisors, or to the governor, or any other officer or person 
or persons, by whatever form of conveyance, for the use and ben- 
efit of any county, shall be good and valid, to all intents and pur- 
poses, to vest in such county, in fee simple or otherwise, all such 
right, title, interest and estate as the grantor or grantors in any 
such deed or conveyances had, at the time of the execution thereof, 
In the land conveyed and intended thereby to be conveyed. E. S. 
1845, p. 132, § 14. 

30. Contracts, etc.— Rights of county— Suits.] § 30. All notes, 
bonds, bills, contracts, covenants, agreements or writings, made 
•or to be made, whereby any person is or shall be bound to the 
People of the State of Illinois, or to any county or the inhab- 
itants thereof, or to the county commissioners, county commission- 
ers' court, or county court, or the board of supervisors, or to 
the governor, or any other officer or person, in whatever form, for 
the payment of money, or any debt or duty, or the performance of 
any matter or thing to or for the use of any county, shall be as valid 
ancl effectual, to all intents and purposes, to vest in said county all 
the rights, interest and actions which would be vested in any 
individual, if any such contract had been made directly to him. 
Suits may be commenced, sued and prosecuted thereon in the 
name of said county, as is provided herein, or in the name of the 
officer or person to whom they are made, to the use of the county, 
as fully and effectually, to all intents and purposes, as any person 
may or can upon like notes, bills, bonds, contracts, agreements or 
writings made to him. [E. 8. 1845, p. 132, § 16. 

31. Tenue of suits by or against county.] § 31. All actions, 
local or transitory, against any county, may be commenced and 
prosecuted to final judgment in the circuit court, or any court of 
general jurisdiction in the county against which the action is 
brought. Any action, local or transitory, in which any county 
shall be plaintiff, may be commenced and prosecuted to final 
judgment in the county in which the defendant in such action 
resides. [E. S. 1845, p. 132, § 18. 

32. Jurors and witnesses.] § 32. In all actions brought by 
or against any county, the inhabitants of the county so suing or 



454 COUNTIES. [DIY. IX, 

being sued may be jurors or witnesses, if otherwise competent 
or qualified according to law. [E. S. 1845, p. 132, § 18. 

33. Duty of county board to prosecute and defend suit.] § 33. 

It shall be the duty of the county boards of each of the counties 
of this state to take and order suitable and proper measures for 
the prosecuting and defending of all spts to be brought by or 
against their respective counties, and all suits which it may be- 
come necessary to prosecute or defend to enforce the collection 
of all taxes charged on the state assessment. [R. S. 1845, p. 
133, § 19. 

34. How judgment against county paid.] § 34. Execution 
shall not, in any case, issue against the lands or other prop- 
erty of a county; but when judgment is rendered against a 
county the county board shall direct an order to be drawn on 
the county treasurer for the amount of the judgment and costs 
— which order shall be paid as other county debts. [R. S. 1845, 
p. 133, § 20. 

35. Auditing claims against county— Appeal.] § 35. Before 
any claim against a county is audited and allowed, the claimant 
or his agent shall verify the same by his affidavit, stating that 
the several items therein mentioned are just and true, and the 
services charged therein, or articles furnished, as the case may 
be, were rendered or furnished as therein charged, and that the 
amount claimed is due and unpaid after allowing all just credits. 
And when the claim of any person against a county is disallowed, 
in whole or in part, by the county board, and the nature of the 
claim is not such that the allowance is discretionary with the 
county board, such person may appeal from the decision of such 
board to the circuit court of the same county, upon filing bond 
with the clerk of such court within twenty days after the rendi- 
tion of the decision, with such security as shall be approved by 
such clerk, in the penal sum of $250, payable to the People of 
the State of Illinois, for the use of such county, conditioned that, 
he will prosecute the appeal with effect, and pay all costs that 
may be adjudged against him.(l) [L. 1851, p. 193, § 1. 

(1) An appeal may l>e taken from the decision of the board of supervisors in. 

regard, to the allowance of an account. See Knox Co. v. Arms, 22 111. R., 175. This case was an 
appeal from the board of supervisors. 

If a claim for services rendered to the poor of a county or township, be disallowed by the 
county board, in whole or in part, the claimant may appeal, or, at his option, bring an action 
against the county. So held in Indiana. Bartholomew v. Wright, 12 Ind. E., 187. 

Form of Affidavit of Correctness of Claim. 

State of Illinois, \ 

County, J bfe * 

A. B., being duly sworn, on oath, deposes and says that the several 

items mentioned in the annexed claim of , against county, 

are just and true, and the services charged therein {or articles fur- 



DIV. IX.] POWERS OF COUNTIES AND COUNTY BOARDS. 455 

36. Summons.] § 36. Upon such bond being filed with the 
said clerk, he shall issue a summons against the county board, 
in like form, as near as may be, as in cases of appeals from jus- 
tices of the peace, which shall be served as other summons 
against a county. 

37. Transcript— Filing same.] § 37. The county clerk shall, 
within ten days after the service of such summons, make out a 
certified copy of the decision, appealed from, and transmit the 
same, together with all the papers in his possession appertain- 
ing to such decision, to the clerk of the circuit court, who shall 
file the same in his office and docket the case as in other cases 
of appeals. [L. 1851, p. 193, § 2. 

38. Time of fixing compensation of county officers. J § 38. 

The time of fixing the compensation of county officers whose 
compensation is to be fixed by the county board, shall be at the 
meeting of such board next before the regular election of the 
officers whose compensation is to be fixed; but in case where 
such compensation is not fixed, the board shall proceed, at the 
next regular or special meeting held thereafter, to fix such com- 
pensation. (1) [See Const., art. 10, § 10, p. 77. 

nished] were rendered [or furnished] as therein charged and stated, 

and that the amount claimed is due and unpaid after allowing all just 

credits. 

Subscribed and sworn to before me this — - 1 A. B. 

day of , A. D. 18—. 

C. D., J. P. 

Form of Appeal Bond to Circuit Court in Appeal from Decision of 

County Board 

Know all men by these presents, that A. B. and C. D. are held and 

firmly bound unto the People of the State of Illinois, for the use of 

county, in the penal sum of two hundred and fifty dollars, lawful money 
of the United States of America, for the payment of which well and 
truly to be made we bind ourselves, our heirs, executors and administra- 
tors, jointly and severally, firmly by these presents. 

Witness our hands and seals this day of , A. D. 18 — . 

The condition of this obligation is such, that whereas on the day 

of , A. D. 18 — , the above bounden A. B. presented a claim for al- 
lowance, duly verified, m favor of and against the county of ■ 

to the county board of said county, the allowance of which was not dis- 
cretionary with said county board; and which claim the said county 
board of said county disallowed in whole [or in part], from which decision 
the said A. B. has taken an appeal to the circuit court of the county of 

aforesaid. Now, if the said A. B. will prosecute his said appeal 

with effect and pay all costs that may be adjudged against him, then this 
obligation to be void, otherwise to remain in full force and effect. 

Bond and security approved by me this day ) A. B., [seal.] 

of ,18—. J. K., I CD., [seal.] 

Clerk Circuit Court of county. J 

(1) On tlic subject of fixing the compensation of county officers, the constitution 
declares, Art. 10, Sec. 10 : The county board, except as provided in section 9 of this article, [Cook 



-} 



456 COUNTIES. [DIV. IX. 

39. Funds kept separate.] § 39. Whenever a tax is levied for 
the payment of a specific debt, the amount of such tax collected 
shall be kept as a separate fund in the county treasury, and ex- 
pended only in the liquidation of such indebtedness. Provided, 
that any surplus remaining in the treasury after full payment of 
such indebtedness, shall be transferred to the common fund of 
the county. [L. 1863, p. 41, § 1. 

40. Issuing county bonds.] § 40. When the county board of 
any county shall deem it necessary to issue county bonds to en- 
able them to perform any of the duties imposed upon them by 
law, they may, by an order, entered of record, specifying the 
amount of bonds required, and the object for which they are to 
be issued, submit to the legal voters of their county, at any gen- 
eral election, the question of issuing such county bonds. The 
amount of the bonds so issued shall not exceed, including the 
then existing indebtedness of the county, five per centum on the 
value of such taxable property of such county, as ascertained by 
the assessment for the state and county tax for the preceding 
year. Said vote shall be by ballot, on which shall be written or 
printed "For county bonds," or "Against county bonds," and if 
a majority of the votes at such election on that question shall be 
"For county bonds," such county board shall be authorized to 
issue such bonds of not less than twenty-five dollars ($25), nor 

county] shall fix the compensation of all county officers, with the amount of their necessary 
clerk hire, stationery, fuel and other expenses, and in all cases where fees are provided for, said 
compensation shall be paid only out of, and shall in no instance exceed, the fees actually col- 
lected ; they shall not allow either of them more per annum than $1,500, in counties not exceed- 
ing 20,000 inhabitants ; $2,000 in counties containing 20,000 and not exceeding 30,000 inhabitants ; 
$2,500 in counties containing 30,000 and not exceeding 50,000 inhabitants ; $3,000 in counties con- 
taining 50,000 and not exceeding 70,000 inhabitants; $3,500 in counties containing 70,000 and not 
exceeding 100,000 inhabitants ; and $4,000 in counties containing over 100,000 and not exceeding 
250,000 inhabitants ; and not more than $1,000 additional compensation for each additional 100,- 
000 inhabitants : Provided, that the compensation of no officer shall be increased or diminished 
during his term of office. All fees or allowances by them received, in excess of their said com- 
pensation, shall be paid into the county treasury. 

Tlie word compensation, as used in the constitution, § 10, Art. 10, and of the 
statute enacted to carry the same into effect, refers only to the compensation of the officer for 
his personal services, and does not embrace the allowance which may be made for necessary 
clerk hire, stationery, fuel, etc. There is no limitation imposed by the constitution upon the 
power of the county board to change, from time to time, during the term of the county officer, 
the amount allowed for these latter purposes as circumstances may show to be necessary. 
Opinion Att'y Gen. Edsall, Jan 22, 1878. 

Where the county board fails to fix the compensation of the county clerk, 
elected after the adoption of the constitution of 1870, he is not entitled to appropriate any of the 
fees of his office to his own use until the amount of his compensation is fixed. And where the 
board has once acted, and fixed the compensation of the county clerk, that compensation can- 
not be increased or diminished during his term. Purcell v. Parks, 82 111. E.., 346. 

The words " county hoard," as used in the constitution, and required to fix the 
compensation of county officers, means the body of persons to whom is intrusted the transac- 
tion of county business, and the term embraces as Avell county courts, as board of supervisors 
and courts of county commissioners. Hughes et al, v. The People, use, etc., 82 111. R., 78. 

The county hoard has power to increase the allowance made to the county 
clerk for clerk hire at any time during his term of office, in case they find the allowance al- 
ready made is insufficient. Where one county board has made a settlement with the county 
clerk as to the amount he is to receive for clerk hire for past services, I think such settlement is 
binding upon their successor. The clerk's own compensation cannot be changed during his 
term of office. Opinion Att'y Gen. Edsall, Aug. 6, 1877. 



DIV. IX.] COUNTY COMMISSIONED. 457 

more than one thousand dollars ($1,000) each, payable respec- 
tively, in not less than one, nor more than twenty years, with in- 
terest, payable annually or semi-annually, at the rate of not more 
than eight per cent, per annum. [As amended, 1879. 

41. Neglect of duty.] § 41. If any member of the county 
board of any county in this state shall willfully neglect to per- 
form any of the duties which are or shall be required of him by 
law, as a member of the county board, he shall, for every such 
offense, forfeit the sum of $200, to be recovered in an action of 
debt, before any justice of the peace of the county. (1) [See Kev. 
Stat., ch. 38, § 208 ; Eev. Stat., ch. 102, § 1, 4; L. 1861, p. 238, § 19. 

PROVISIONS SPECIALLY APPLICABLE TO THE BOARD OF COUNTY COM- 
MISSIONERS IN COUNTIES NOT UNDER TOWNSHIP ORGANIZATION. 

Section. 

42. Commission— Oath. 

43. Meetings. 

44. Chairman. 

45. Quorum— Chairman pro tern. 

46. County board successor to county clerk. 

47. Supervision of highways, etc. 

48. Administering oaths. 

49. Acts legalized. 

4:2. Commission — Oath. J § 42. Each member of the board of 
county commissioners shall be commissioned by the governor, 
and shall, before entering upon the duties of his office, take and 
subscribe the following oath, which shall be filed in the office of 
the county clerk: 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 
Illinois, and that I will faithfully discharge the duties of the office of county 
commissioner of county, according to the best of my ability. 

43. Meetings.] § 43. The board of county commissioners 
shall hold regular sessions for the transaction of the business of 
the county, on the first Mondays of December, March, June and 
September, the second Monday of July of each year, and at such 
other times as may be provided by law, and may hold special 
sessions on the call of the chairman or any two members of said 
board, whenever the business of the county requires it. 

44. Chairman.] At the session of said commissioners in De- 
cember of each year, they shall elect one of their number chair- 

(1) Municipal corporations, such as counties, being created for governmental pur- 
poses, where they exercise the functions of subscribing in aid of railways under statutes, the 
power to do so, must be clearly conferred, but strictly pursued. Harding v. Rockford, R. I, & St. 
L. Co. el al„ 65 111. R., 90, 



458 COUNTIES. [DIV. IX. 

man for the ensuing year, who shall preside at their sessions and! 
perform such duties as are or may be prescribed by law or by the 
order of said board. 

45. Quorum— Chairman pro tern.] § 45. A majority of the 
members of said board shall constitute a quorum to do business,, 
and, in the absence of the chairman, a chairman pro tern, may be 
appointed. 

46. County board successor to county clerk.] § 46. The board 
of county commissioners shall be the successor of the county 
court in relation to all matters concerning county affairs, and 
where, in any county not under township organization, the county 
court is authorizeed to do any act or make any contract on be- 
half of the county, such authority shall be vested in said board. 

47. Supervision of highways, etc.] § 47. Such board shall 
have general supervision of all highways, roads and bridges in 
the county, including state roads. 

48. Administering oaths.] § 48. The chairman or any mem- 
ber of the board of county commissioners may administer oath& 
to persons, concerning any matter submitted to the board, or con- 
nected with their powers or duties. 

49. Acts legalized.] § 48 J. All acts heretofore done by boards 
of county commissioners, which might have been done by county 
courts in counties in which the said courts have not continued to 
do the business of said counties, are hereby legalized. 

PROVISIONS SPECIALLY APPLICABLE TO THE BOARD OF SUPERVISORS W 
COUNTIES UNDER TOWNSHIP ORGANIZATION. 
Section. 

50. Annual and regular meetings. 

51. Special meetings. 

52. Organization of county board. 

53. Certificate of election. 

54. Quorum — Majority vote. 

55. Open doors. 

56. Administering oaths. 

57. Appropriations for roads and bridges. 

58. Boundaries of towns — New towns, etc. 

59. Naming towns. 

50. Annual and regular meetings.] §49. The annual meeting 
of the board of supervisors shall be holden on the second Tues- 
day of September in each and every year, at the county seat ; 
and if the court house be convenient, shall be held therein. A 
regular meeting of the board shall be held on the second Mon- 
day of July of each and every year, at the county seat, and at 
such other times as may be prescribed by law. [L. 1861, p. 
236, § 3. 



D1V. IX.] BOARD OF SUPERVISORS. 459 

51. Special meetings.] § 50. Special meetings of the board of 
supervisors shall be held only when requested by at least one- 
third of the members of the board, which request shall be in 
writing, addressed to the clerk of the board, and specifying the 
time and place of such meeting, upon reception of which the 
clerk shall immediately transmit notice, in writing, of such meet- 
ing, to each of the members of the board. The clerk shall also 
cause notice of such meeting to be published in some newspaper 
printed in the county, if any there be. [L. 1861, p. 236, § 2. 

52. Organization of county board.] § 51. The board of super- 
visors, at their first meeting in every year, shall organize by 
choosing one of their members as chairman, who shall preside 
at all meetings of the board during the year. In case of his 
absence at any meeting, the members present shall choose one 
of their number as temporary ehairman.(l) [L. 1861, p. 236, § 4 

53. Certificates of election.] § 52. The supervisors shall sev- 
erally lay before the board, at the first meeting after the election, 
their several certificates of election, which shall be examined by 
the board, and if found regular, shall be filed in the office of the 
county clerk. [L. 1861, p. 236, § 5. 

(1) Ttie board of supervisors have no power to perform official acts except as 
aboard. County Corrirs Randolph Co. v. Jones, jBreese R., 237; Lynch v. Hartwell, 8 Johns R., 
422. When acting as a board in the line of their duty, the county is bound by their acts. Ver- 
milion Co. v. Knight, 1 Scam. R., 97. 

Organization of the board and. "business.— The board of supervisors may elect a 
temporary chairman, whether there is a regular chairman in existence or not, and any meeting 
of the board at which a quorum is present must be regarded as valid. Town of Ottawa v. County 
of LaSalle, 11 111. R., 654. That is if regularly called in pursuance of law. The board of super- 
visors is intended to be organized as a deliberative body. In the absence of any special rules 
which they may adopt for their government, they will be governed by the general rules of par- 
liamentary law. See post, appendix. Like all other bodies of the kind, they should perform 
their work through the aid of committees. The chairman or presiding officer appoints all com- 
mittees, unless the assembly directs otherwise. Committees should consist of odd numbers, as 
three, rive, seven, or more. Committees are appointed with reference to the subjects of which 
the assembly has cognizance. 

The standing committees of a board of supervisors are usually the following: 
accounts; equalization of assessment ; education; finance ; jury list ; poor aud poor farm; pub- 
lic buildings ; refunding taxes; roads and bridges. 

The first member named on a committee is the chairman, whose duty it is to regulate and 
preside at their meetings, and make a report of their conclusions. 

Select committees are sometimes appointed to consider a particular subject, where it 
is desired to give it special attention. It is the rule that the person moving a select committee 
should be first named as a member of it. 

The report of a committee embodies their conclusions concerning the subject re- 
ferred. It may be verbal or written. The formal words of a written report are as follows: 

Form of Report of Committee. 

The committee on accounts [or, as the case may be,"] to whom was re- 
ferred the matter of [state the matter referred] have had the same under 
consideration, and beg leave to report that [here set forth the conclusions: 
of the committee]. 

All of which is respectfully submitted. 

The report may be signed by the chairman, under the direction of the committee, or by the 
members individually. All the members of a committee should have notice of their meeting, 
after which a majority may act and report. 

When a report is made there are two questions upon it: 1. Its acceptance. 2. Its adoption. 
A report is presumed to be accepted, and no motion to that effect is necessary. The question, 
should be on its adoption. Concerning general parliamentary rules, see post, appendix. 



460 COUNTIES. [DIV. IX. 

54. Quorum— Majority vote.] § 53. A majority of the super- 
visors of any county shall constitute a quorum for the transac- 
tion of business ; and all questions which shall arise at meet- 
ings shall be determined by the votes of the majority of the 
supervisors present, except in such cases as is otherwise pro- 
vided. [L. 1861, p. 237, §7. 

55. Open doors.] § 54. The board of supervisors shall sit 
with open doors, and all persons may attend their meetings. 
[L. 1861, p. 237, § 8. 

56. Administering oaths.] § 55. Every chairman of said 
board shall have power to administer an oath to any person, con- 
cerning any matters submitted to the board or connected with 
their powers and duties. [L. 1861, p. 237, § 9. 

57. Appropriations for roads and bridges.] § 56. Said board 
shall have power to appropriate funds to aid in the construction 
of roads and bridges in any part of the county, whenever a 
majority of the whole board of the county may deem it proper 
and expedient. [See "Koads and Bridges," § 110, ante p. 191. L- 
1861, p. 236, § 6, part 4 

58. Boundaries of towns— New towns, etc.] § 57. Said board 
shall also have power to change the boundaries of towns, and to 
create new towns in their respective counties, in manner pro- 
vided by law ; to designate and give names thereto, and to fix 
the place of holding the first town meeting therein. (1) [See 
"Township Organization Act," art. 3. L. 1861, p. 236, § 6, 
part 5. 

59. Naming towns.] § 58. Whenever the board of supervisors 
shall create a new town, or change the name of an existing town, 
the proceedings in giving a name to such new town, or changing 
the name of an existing town, shall be as follows: The proposed 
name to be given to such new town, or existing town, shall be filed 
in the office of the auditor of public accounts, there to be retained 
for at least one year ; and the auditor of public accounts, at any 
time after the filing of such proposed name, shall, upon applica- 
tion of said board, grant his certificate stating that such proposed 
name, from information appearing in his office, has not been 
adopted by any city, town, village or municipal corporation in 
this state ; which certificate must be obtained by said board be- 
fore any action whatever shall be taken by said board toward 
making such change of name ; and all proceedings instituted in 
any court or other place, under a name changed, without comply- 
ing with the provisions of this section, shall be held to be void and 

(1) The manner provided for changing the boundaries of towns and creating 
new towns, will be found, ante p. 41, Art. 3, sec. 1. 



DIV. IX.] COMMISSIONERS OF COOK COUNTY. 461 



of no effect. If such name has been adopted elsewhere in this 
state, the auditor of public accounts shall so notify the board r 
whereupon another name shall be filed in his office, which shall 
there remain in like manner as hereinbefore provided, and the 
certificate shall be issued by the auditor of public accounts im- 
mediately after such filing, stating that such name has not been 
elsewhere adopted; whereupon said board may proceed to make 
such change of name, and not before ; and all proceedings pend- 
ing, and all rights and privileges acquired in the name of such 
town, by such town, or by any person residing therein, shall be 
secured to such town or person, and such proceedings continued 
to final consummation in such name, the same as though the same 
had not been changed. [L. 1861, p. 238, § 16. 

SPECIAL PROVISIONS APPLICABLE TO THE BOARD OF COUNTY COMMIS- 
MISSIONER OF COOK COUNTY. 

[See Const., art. 10, § 10, p. 77.] 
Section. 

60. Election districts. 

61. Term of office of commissioners. 

62. Oath — Meetings — Corporate name — Powers, etc 

63. Clerk of the board. 

64. Emergency. 

60. Districts.] § 59. The county of Cook shall be divided 
into six districts for the election of county commissioners, and 
shall be entitled to elect such commissioners in the respective 
districts, as follows:(l) 

First — The towns of South Chicago, North Chicago and West 
Chicago shall constitute the first district, and shall, on the first 
Tuesday after the first Monday in November, in the year 1874, 
and every three years thereafter, elect four commissioners ; and 
on the first Tuesday after the first Monday in November, in the 
year 1875, and every three years thereafter, elect two commis- 
sioners ; and on the first Tuesday after the first Monday in No- 
vember, in the year 1876, and every three years thereafter, elect 
four commissioners. 

Second — The towns of Lake View, Jefferson, Norwood Park, 
Niles, Evanston, New Trier and Northfield shall constitute the 
second district, and on the first Tuesday after the first Monday 
of November, in the year 1875, and every three years thereafter, 
shall elect one commissioner. 



(1) In regard to Cook county, the constitution declares, Art. 10. Sec. 7: The 
county affairs of Cook county shall be managed by a board of commissioners of fifteen persons, 
ten of whom shall be elected from the city of Chicago, and five from towns outside of said city, 
in such manner as may be provided by law. 



462 COUNTIES. [DIV. IX. 

Third — The towns of Wheeling, Maine, Elk Grove, Schauni- 
berg, Palatine, Barrington and Hanover shall constitute the third 
district, and on the first Tuesday after the first Monday of No- 
vember, in the year 1876, and every three years thereafter, shall 
elect one commissioner. 

Fourth — The towns of Leyden, Proviso, Lyons, Cicero, River- 
side and Lake shall constitute the fourth district, and on the first 
Tuesday after the first Monday of November, in the year 1875, 
and every three years thereafter, shall elect one commissioner. 

Fifth — The towns of Hyde Park, Calumet, "Worth and Thornton 
shall constitute the fifth district, and on the first Tuesday after 
the first Monday of November, in the year 1874, and every three 
years thereafter, shall elect one commissioner. 

Sixth — The towns of Bloom, Rich, Bremen, Orland, Palos and 
Lemont shall constitute the sixth district, and on the first Tues- 
day after the first Monday of November, in the year 1875, and 
every three years thereafter shall ele'ct one commissioner. [L. 
1871-2, p. 308, § 1. 

61. Term of office of commissioners.] § 60. Their terms of 
office shall begin on the first Monday of December after their 
election, and they shall hold their office, respectively until their 
successors are elected and qualified. Each of said commission- 
ers shall have been a resident of the district from which he is 
elected for one year prior to his election. The provisions of the 
general election law entitled "An Act for the registry of electors 
and to prevent fraudulent voting" shall be applied to all elec- 
tions for commissioners under this act. [As amended, 1879. 

62. Powers and duties— Meetings.] § 61. The said commis- 
sioners shall, severally, before they enter upon the discharge of 
their duties take the oath of office prescribed by the constitu- 
tion; they shall be known as the board of commissioners of 
Cook county, and as such board of commissioners shall have the 
management of the county affairs of said county, and shall ex- 
ercise the same powers, perform the same duties, be subject to 
the same rules, regulations and penalties as prescribed by law 
for the board of supervisors, and shall be subject also to the 
rules, regulations and penalties hereinafter provided. The said 
board of commissioners shall have no power or autherity to 
delegate to any committee, or other person or persons, the 
"power to act" when such "power to act" shall involve the let- 
ting of any contract or the expenditure of public money, ex- 
ceeding the sum of five hundred dollars ($500), and any action 
of said board, or of any committee thereof, or of any other per- 
son, in violation of this section shall be null and void. No 
money shall be appropriated or paid by said county commis- 



©TV. IX.] 'CLASSIFICATION OF COUNTIES. 463 

sioners beyond the sum of five hundred dollars ($500) unless such 
appropriation shall have been authorized by a yote of at least 
two-thirds of the members elected to the said county board. 
The said board of county commissioners shall have regular 
meetings on the first Mondays of December, March, June and 
September of each year. [As amended, 1879. 

63. Clerk of the board.] § 62. The county clerk of Cook 
•county shall be clerk of the board of county commissioners ; and 
all laws applicable to the county clerks of other counties under 
township organization, shall be applicable to him. 

64. Emergency.] § 63. Inasmuch as no law exists providing 
for the organization of the board of county commissioners, in 
counties not under township organization, and the public inter- 
est requires this act to take immediate effect : therefore, this act 
«hall take effect and be in force from and after its passage. 

[Note.— "An act authorizing the Board of County Commissioners, elected in pursuance of 
article 10, section 6, of the constitution, to perform the powers and duties heretofore devolving 
upon the county courts in the transaction of county business, in counties not under township 
organization," approved and in force January 16, 1874, is omitted. Section 44-49 supercede the 
same. 

FEES AND SALAEIES— CLASSIFICATION OF COUNTIES. 

Part of An Act concerning fees and salaries, and to classify the several counties of the State 

with reference thereto. [Approved March 29, 1872. In force July 1, 1872. 

Title as amended by act approved March 28, 1874, 

in force July 1, 1874.] 

Section. 
13. Counties classified. 
2. Emergency. 

13. Counties classified.] § 13. That for the purpose of fixing 
*fche fees and compensation of county and township officers in this 
«tate, the several counties therein are hereby divided into three 
classes according to populatien as ascertained by the Federal 
census of the year 1870, which classes shall be known as the 
first, second and third, as follows : 

Counties containing a population of not exceeding twenty 
thousand inhabitants, to-wit : The counties of Alexander, Bond, 
Boone, Brown, Calhoun, Carroll, Cass, Clark, Clay, Clinton, 
•Crawford, Cumberland, DeWitt, Douglas, DuPage,' Edwards, 
Effingham, Fayette, Ford, Franklin, Gallatin, Grundy, Hamilton, 
Hardin, Henderson, Jackson, Jasper, Jefferson, Jersey, Johnson, 
Kendall, Lawrence, Marshall, Mason, Massac, Menard, Mercer, 
Monroe, Moultrie, Perry, Piatt, Pope, Pulaski, Putnam, Bich- 
land, Saline, Schuyler, Scott, Stark, Union, Wabash, Washington, 
Wayne, White, Williamson and Woodford, shall belong to and 
be known as counties of the first class. 

Counties containing a population over twenty thousand and not 



464 COUNTIES. [DIV. IX. 

exceeding seventy thousand, to-wit : Adams, Bureau, Champaign, 
Christian, Coles, DeKalb, Edgar, Fulton, Greene, Hancock, Henry, 
Iroquois, JoDavies, Kane, Kankakee, Knox, Lake, LaSalle, Lee, 
Livingston, Logan, Macon, Macoupin, Madison, Marion, McDon- 
ough, McHenry, McLean, Montgomery, Morgan, Ogle, Peoria, 
Pike, Randolph, Rock Island, Sangamon, Shelby, St. Clair, 
Stephenson, Tazewell, Vermilion, Warren, "Whiteside, Will and 
Winnebago, shall belong to and be known as counties of the sec- 
ond class. 

Counties containing a population exceeding seventy thousand 
inhabitants, to-wit : The county of Cook shall belong to and be 
known as counties of the third class. The fees and compensation 
of the several officers hereinafter named, shall be as follows in 
the respective classes of counties to which they belong. [As 
amended, 1879. 

2. Emergency.] § 2. Whereas, The county of Greene was 
improperly classed as a county of the first class, whereby the 
county board are and have been acting under an improper classi- 
fication in fixing the compensation of county officers ; therefore 
an emergency exists, and this act shall be in force from and after 
its passage. 

BOUNTY ON WOLF SCALPS. 

AN ACT authorizing counties to give a bounty on wolf scalps. [Approved March 18, 1877. Ie 

force July 1, 1877.J 

Section. 

1. County board allow bounty. 

2. Bounty entered on record. 

3. Scalps to be produced. 

4. Clerk record certificates issued. 

1. County board allow bounty.] §1. The county board of any 
county in this state may hereafter allow such bounty on wolf 
scalps as said board may deem reasonable, said bounty to be paid 
out of the treasury of the county wherein said wolf or wolves 
were killed, upon the certificate of the clerk of the county board. 

2. Bounty entered on record.] § 2. When the county board 
of any county shall determine upon the allowing of a bounty on 
wolf scalps for any one year, they shall enter an order upon their 
record setting forth the amount of such allowance. 

3. Scalps to be produced.] § 3. The person claiming a bounty 
shall produce the scalp or scalps, with the ears thereon, and within 
sixty days after the same shall have been caught, to the clerk of 
the county board wherein such wolf or wolves may have been 
caught and killed, whereupon the clerk of said board shall admin- 
ister to said person the following oath or affirmation, to-wit : "You 



©IV. IX.] COUNTY CLERKS. 465 

do solemnly swear (or affirm, as the case may be), that the scalp 
or scalps here produced by you was taken from a wolf or wolves 
killed and first captured by yourself within the limits of this 
•county and within the sixty daj^s last past;" which oath or affir- 
mation shall be subscribed by the affiant. 

4. Clerk record certificates issued.] § 4 It shall be the duty 
■of the several clerks of the county boards to keep a record of the 
amount of certificates issued as a premium for wolf scalps, to 
whom, and at what date, and lay the same before the board at its 
regular annual meeting in each year. 

COUNTY CLERKS. 

.AN ACT to revise the law in relation to county clerks. r Approved March 24, 1874. In force 
July 1, 1874. Rev. Stat., ch. 35.] 
Section. 

1. Oath. 

2. Bond — Form. 

3. Commission. 

4. Office at court house, etc. 
• 5. Seal. 

6. Deputies. 

7. Principal clerk responsible. 

8. Pro tern, clerk in case of vacancy. 

9. Custody of records. 
10. General duties.: 

1. As clerk of county board. 

2. Record of county orders. 

3. County orders to be countersigned. 

4. Record of official bonds. 

5. Indexes of records in his office. 

6. Copies of records. 

7. Other duties required by law. 

1. Oath.] § 1. That each county clerk, before entering upon 
tthe duties of his office, shall take and subscribe the following oath, 
which shall be entered at large upon the records of his office : 

I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the state of 
Illinois, and that I will faithfully discharge the duties of the office of 
county clerk of county, according to the best of my ability. 

•[L. 1849, p. 63, § 8. 

2. Bond — Form. § 2. Each county clerk shall, before entering 
upon the duties of his office, give bond in such penalty and with 
such security as the county board shall deem sufficient, which 
bond shall be substantially in the following form, and shall be 
recorded at large upon the records of his office, and when so 
recorded shall be deposited with the clerk of the circuit court for 
safe keeping : 

Know all men by these presents, that we, (A B,) principal, and (C D) 

.and (E F,) sureties, all of the county of and state of Illinois, are 

30 



466 ' COUNTIES. [DIY. IX. 



held and firmly bound to the People of the State of Illinois, in the penal 

sum of dollars, for the payment of which, well and truly to be 

made, we bind ourselves, each of us, our heirs, executors and adminis- 
trators firmly by these presents. Signed with our hands and sealed with 
our seals. 

Dated at , the day of , 18—. 

The condition of the above bond is such, that if the above bounden (A 
B) shall perform all the duties which are or may be required by law to be 

performed by him as county clerk of said county of , in the time 

and manner prescribed or to be prescribed by law, and when he shall be 
succeeded in office, shall surrender and deliver over to his successor in 
office all books, papers, moneys and other things belonging to said county, 
and appertaining to his said office, then the above bond to be void : other- 
wise to remain in full force. 

Signed, sealed and delivered in the presence of (G H.) 

A B, [seal.] 

C D, [SEAL.] 

E F, [seal.] 
[L. 1849, p. 63, § 8. 

3. Commission.] § 3. County clerks shall be commissioned 
by the governor. 

4. Office at court house.] § 4. The county clerk shall keep his 
office at the court house of his county, or at such other place as 
may be provided for him by the authorities of such county at the 
county seat. [L. 1849, p. 63, § 8. 

5. Seal.] § 5.. He shall be keeper of the seal of the county, 
which shall be used by him in all cases where he is required to 
use an official seal. [L. 1849, p. 63, § 5. 

6. Deputies.] § 6. He may appoint deputies, who shall take 
and subscribe the same oath i]or the discharge of their duties as- 
is required of him, which shall be entered of record in his office. 
[L. 1853, p. 257, § 1 ; K. S. 1845, p. 395, § 6. 

7. Principal clerk responsible.] § 7. The principal clerk shall 
in all cases be responsible for the acts of his deputies. [E. S.. 
1845, p. 395, § 7. 

8. Pro tern, clerk in case of vacancy.] § 8. Whenever a va- 
cancy occurs in the office of any county clerk and the unexpired 
term exceeds one year, the county board of the county shall im- 
mediately appoint a clerk pro tempore, who shall qualify by giving 
bond and taking the oath as required of the county clerk, and 
shall thereupon perform all the duties and be entitled to all the 
emoluments and be subject to all the penalties appertaining to the 
office of county clerk until the successor of such clerk is elected 
or appointed and qualified. [See "Elections," § 133. L. 1849, 
p. 64, § 10. 

9. Custody of records.] § 9. The county clerk shall have the 
care and custody of all the records, books and papers appertain- 



DIV. IX.] COUNTY CLERKS. 467 

ing to and filed or deposited in their respective offices, and the 
same shall be open to the inspection of all persons without re- 
ward. [L. 1861, p. 238, § 12. 

10. General duties.] § 10. The duties of the county clerk 
shall be — 

1st. To act as clerk of the county board of his county and to 
keep an accurate record of the proceedings of said board, file and 
preserve all bills of account acted upon by the board, and when 
any account is allowed or disallowed, he shall note that fact 
thereon, and when a part of any account is allowed he shall note 
particularly the items allowed. 

2d. To keep a book in which he shall enter the number, date 
and amount of each order upon the county treasurer, and the 
name of the person in whose favor the same is drawn, and when 
such order is canceled, he shall note the date of cancellation 
opposite such entry. (1) 

3d. Before any such order is delivered to the person for whose 
benefit it is drawn, the county clerk shall present the same to the 
county treasurer, who shall personally countersign the same. 

4th. To keep a book, in which shall be entered in alphabetical 
order, by name of the principal, a minute of all official bonds filed 
in his office, giving the name of the office, amount and date of 
bond, names of sureties and date of filing, with such reference to 
the number or other designation of the bond, that the same may 
be easily found. 

5th. To keep proper alphabetical indexes of all records and 
papers in his office. 

6th. To give any person requiring the same, and paying the 
lawful fees therefor, a copy of any record, paper or account in his 
office. 

7th. Such other duties as are or may be required by law. 

[L. 1861, p. 237, § 10; p. 238, § 13. R. S. 1845, p. 136, § 46. 

(1) A county order is properly executed when signed "by the clerScand counter- 
signed by the treasurer of the county. No seal of office is required, and the mere fact that such 
order is issued and delivered in another county will not render it illegal. Board of Supervisors, 
etc., v. Lawrence, 63 111. R , 82. 



DIV. X.] ANIMALS RUNNING AT LARGE. 469 



DIVISION X. 

ANIMALS. 

AN ACT to revise the law in relation to permitting animals to run at large. [Approved March 
30th, 1874. Iu force July 1, 1874. Rev. Stat., ch. 8.] 

ANIMALS RUNNING AT LARGE. 
Section. 

1. Animals prohibited from running at large— Jurisdiction. 

2. Petition for vote — Notice. 

3. Form of ballots— Voting — Canvass — Return. 

4. Effect of vote. 

5. Vote by township, precincts, etc., when animals allowed, etc. 

6. Rights saved. 

7. Vote to run at large not to take effect until one year, etc. 

1. Animals prohibited from running at large— Jurisdiction.] 

§ 1. That whoever, being the owner, or having the possession of 
any domestic animal of the species of horse, mule, ass, cattle, 
sheep, goat or swine, shall suffer the same to run at large, ex- 
cept when authorized as hereinafter provided, shall be fined not 
less than $3 nor more than $10 for each offense, and for every 
day he shall allow the same to run at large after having been 
once convicted under this act. The herding of any such ani- 
mal upon uninclosed lands without the consent of the owner or 
person having the control of such lands, shall be deemed run- 
ning at large under this act. Justices of the peace shall have 
jurisdiction of cases arising under this act, and animals running 
at large contrary to the provisions hereof.(l) [L. 1871-2, p. 116, 
117, §1,2. 

(1) The party who has possession, of stock and "who has control over them, is lia- 
ble for damage done by them, in the same manner as though lie were the owner. Ozburn v. 
Adams, 70 111. R., 29. 

Suits brought under the act to prohibit domestic animals running at large may 
he brought before justices of the peace, in the name of the People of the State ot Illinois on 
the complaint of any person who is or may be the owner or have the control of land near to or 
upon which the animal may be taken up. The suit should be commenced by summons. The 
duty of prosecuting the suit seems to be imposed on the taker up or party aggrieved. Opinion 
Att'y Gen. Edsall, Aug. 13, 1873. 

A party who permits his stock to run at large in violation of law, is liable 
in an action of trespass for any damage they may do to the crops of others. Frederick v. White, 
73 111. R., 590. 

Where a plaintiff's horses escaped from his enclosure against his will, a nd he 
immediately went in search of them to put them up, but before he found them they were seized 
by the police constable of the town where they were found running, who impounded them un- 
der the ordinance of the town. Held, that under such circumstances the horses were not run- 
n ing at large in the legal sense of the term, and that the constable had no right to detain them 
from the owner. Kinder v. GiUispee, 63 111. R., 88; 0. & M. R. R. Go. v. Jones, 63 111. R., 472. 

"Where cattle are trespassing upon the premises of a party, he, and also the 
members of his family, have the undoubted right to use all reasonable means and sufficient 
force to remove them, and there is nothing illegal in driving such cattle from the premises with 
dogs, if no unnecessary injury is done to the stock. Spray v. Ammerman, 66 111. R., 309. 

At common law every man is bound to keep his cattle on his own land or re- 
spond in damages for their trespasses ; and it was one of its rules that no man is bound to fence 



470 ANIMALS. [DIY. X. 

2. Petition for vote— Notice.] § 2. On the petition of one 
hundred or more legal voters of the county being filed with the 
county clerk, before the time of giving notice of the general 
election in November, in any year, in counties not under town- 
ship organization, or, in counties under township organization, 
before the time of giving notice of the general election for town 
officers in April, in any year, the county clerk shall cause notice 
to be given that at such election a vote may be taken in such 
county for and against domestic animals, or any species thereof, 
to be mentioned in such notice, being allowed to run at large in 
such county. Such notice shall conform to the prayer of the 
petition, and if several of such petitions are filed, requiring dif- 
ferent questions to be submitted at the same election, the notice 
shall conform thereto. (1) I L. 1871-2, p. 117, § 3. 

his close against an adjoining field, but every man is bound to keep his cattle on his own field 
at his peril. But this legal obligation might be changed by prescription iind covenant, and in 
this State it can be done under the statute regulating partition fences. If cattle or hogs escape 
through a line or division fence .whether established by act of parties or under the statute, 
and do damage, before the party injured can recover he must prove that the stock came 
through that part of the fence belonging to the defendant; or if the defendant's stock 
pass through that part of fence belonging to each party, then the plaintiff must prove the 
amount of damage occasioned by the stock passing through the defendant's portion of the 
fence, in order to recover for that part of the damages sustained. If the stock pass through 
plaintiff's portion for its insufficiency, he cannot recover of the defendant for any damages 
they may do. Darcy v. Miller, 86 111. R., 102. See ante, Div. IV., " Fences," p. 248. 

The owner of sheep infected with contagious disease, which is know to him, who suffers the 
same to escape from his pasture into the premises of another, through a defect in his part of a 
division fence, which he neglects to keep in repair, is liable in an action, under the statute, to 
such adjoining owner for all damages he may sustain by having such disease communicated to 
his sheep. Herrick v. Gary, 83 111. R., 85. See ante, Div. IV., " Fences," p. 248. 

(1) Form of Petition for Vote on Animals Running at Large. 

To , county clerk of county, State of Illinois: 

The undersigned petitioners, legal voters of said county of , do 

respectfully petition that you cause to be submitted to the legal voters of 
said county at the next general election for town officers, to be held on 
the day of — , C. I). 18—, the question of allowing domestic ani- 
mals [or any species of animals, mention them,'] to run at large in said 
county. 

Dated this day of — , 18. 

(To be signed by one hundred or more legal voters.) 

Form of Notice by County Clerk of Taking Vote on Animals Running at 

Large. 

Public notice is hereby given, that on the day of , A. D. 18 — , 

a petition was filed in the office of the county clerk of county, State 

of Illinois, signed by one hundred legal voters of said county, praying 
that said clerk cause to be submitted to the legal voters of said county, at 
the next general election for town officers in said county, the ques- 
tion of allowing domestic animals to run at large in such county. There- 
fore, at the general election for town officers in said county, to be held on 

the day of , A. D. 18 — , a vote will be taken for and against 

domestic animals, [or if any species of animals, mention them] being 
allowed to run at large in said county. 

Given under my hand this day of , A. D. 18—. A. B., 

County Clerk of county. 



DIV. X.] ANIMALS RUNNING AT LARGE. 471 

3. Form of ballot— Toting— Canvass— Return.] § 3. If the 

petition be for domestic animal* running at large, then the bal- 
lots shall be "For domestic animals running at large," and 
""Against domestic animals running at large." If the petition 
be for any one or more species of domestic animals running at 
large, then the ballots shall be "For (naming the ani- 
mals, as in the petition,) running at large," and "Against 

(naming the animals, as in the petition,) running at large." If 
several petitions are filed requiring the submission of different 
questions at the same election, all the questions shall be voted 
upon on the same ballot, and the ballots shall be worded accord- 
ingly. The ballots cast in pursuance of this act shall be depos- 
ited in a separate ballot box to be provided for that purpose, and 
canvassed, and returns thereof made as in other cases of elec- 
tions. 

4. Effect of vote.] § 4. If a majority of all the votes cast in 
the county at such election shall be for domestic animals, or any 
species thereof, running at large, it shall be lawful in such county 
for domestic animals, or such species thereof, to run at large, 
provided that if, at any such election, the vote in any precinct in 
counties not under township organization, or any town in 
counties under township organization, or any incorporated city, 
village or town, in any county, shall be against domestic ani- 
mals, or any species thereof, running at large, it shall not be law- 
ful for such animals to run at large in such precinct, or town, or 
incorporated city, village or town.(l) L. 1871-2, p. 117, § 3. 

5. Tote by township, precinct, etc., when animals allowed to 
run at large in the county.] § 5. If any county wherein animals 
or any species thereof, are allowed to run at large pursuant to 
any vote heretofore had, or which may hereafter be had, on the 
petition of twenty legal voters of any precinct, if such county is 
not under township organization, or town, if such county is un- 
der township organization, or any incorporated city, village or 
town, in either case, being filed with the county clerk of such 
county, a vote may be taken in such precinct, or town, or incor- 
porated city, village or town, in the manner provided in this act, 
and if a majority of the votes cast shall be against such animals 
running at large, then it shall not be lawful for them to run at 
large in such precinct, or town, or incorporated city, village or 
town. The vote provided for in this section may be taken in 

(1) A by-law of a town prohibiting cattle from running at large and inflicting a pecuniary pen- 
alty 'upon the owners of cattle violating the law, confers no right upon the owner in fee of the 
land included in a highway in such town to distrain cattle grazing upon such highway. Taylor 
•v. Wetey, 36 Wis. R., 42. 

Concerning the restraint and regulation of animals running at large, by the 
electors at town meeting, see Div. I., ante, p. 56. 



472 ANIMALS. [div. 



any such precinct, or town, or incorporated city, village or town,., 
whether it shall have previously have voted against or in favor of 
such animals running at large therein. 

6. Rights saved.] § 6. This act shall not be so construed as 
to prohibit the running at large of any domestic animals in any 
county, precinct or town, or incorporated city, village or town 
where the same is allowed pursuant to any election held by virtue 
of any law in force at the time this act shall take effect. 

7. Yote to run at large not to take effect till one year — Five 
years limitation. J §7. Where, in any county, town, precinct, 
village or city, domestic animals shall have been restrained from 
running at large, and such county, town, precinct, village or city 
shall vote to permit such animals to again run at large therein, 
such vote shall not take effect so as to permit such animals to run 
at large within one year after the election : Provided, that no- 
vote to permit such animals to again run at large in any county, 
town or precinct, where the same have been restrained by any 
election after the adoption of this act, shall be taken within five 
years after such restraining. 

MALE ANIMALS. 

AN ACT to prevent male animals running at large, and for their restraint. [Approved March* 
8, 1872. In force July 1, 1872. Laws 1871-2, p. 118.] 

Section. 

8. What not to run at large. 

9. Taken up— Advertising— Penalty— Redeeming. 

10. Penalty — Civil damages. 

11. When deemed estray. 

8. What not to run at large.] § 1. That it shall be unlawful 
for any male animal, viz : stallion, jackass, bull, ram or boar to» 
run at large in this state. [E. S. 1845, p. 274, § 1-6. 

9. Taking up— Advertising— Penalty — Redeeming.] § 2. That 
whenever any animal, as set forth in the first section of this act y . 
shall be allowed, by its owner or owners, keeper or keepers, to run 
at large or go unrestrained, it shall be lawful for any person to- 
restrain the same by proper confinement and care ; and the per- 
son so restraining shall immediately advertise such animal by 
posting up in three of the most public places in the township 
where the person so restraining shall reside, and the owner or 
owners, keeper or keepers of such animal shall be required to pay 
to the person so restraining, $5 for such restraint, seventy-five 
cents for each of the three advertisements so posted up, and sev- 
enty-five cents per diem for their maintenance while in his care ; 
upon the payment of which, and the proper proof of ownership 



DIY. X.] MALE ANIMALS. 473 

or agency for such ownership, the person so restraining shall 
deliver up such animal, unless as provided in the third section of 
this act. 

10. Penalty— Civil damages.] § 3. Any owners or keepers of 
animals, as set forth in the first section of this act, who shall 
allow such animal to run at large or go unrestrained, in addition to 
the foregoing, as set forth in the second section of this act, upon 
complaint of any person or persons to any justice of the peace, or 
town officer having jurisdiction, such owner or owners, keeper or 
keepers, shall be deemed guilty of trespass, and shall be mulcted 
in a fine of not less than $5, nor more than $50 for each and every 
such offense. And in addition to the foregoing,, every such owner 
or owners, keeper or keepers of such male animals, as set forth in 
the first section of this act, who shall allow such male animals to 
go unrestrained, or run at large, shall be deemed liable for all 
damages that may accrue to others, whether to their persons or 
their property, as stock-breeders or otherwise, caused or brought 
about by the unrestraint or running at large of said male animals ; 
and damages so accrued shall be recoverable by law in an action 
for damages in any court having jurisdiction of the same. 

11. When deemed an estray.] § 4. If such male animal shall 
remain in the possession of the person restraining it for thirty 
days from the time of advertising it, it shall be deemed an estray, 
and the laws of this state governing estrays shall be applicable: 
to it. 



APPENDIX. 



AMENDATORY ACTS PASSED BY THE GENERAL 
ASSEMBLY, 1881. 



DRAINS AND DITCHES. 

[ See Ante p. 206.] 

AN ACT to amend Sections three (3), nine (9), twelve (12), thirteen (13), sixteen (16), thirtv-three 
(33), thirty-four (34), thirty-five (35), fifty-one (51), fifty-three (53), fifty-tour (54), fifty-five (55), 
fifty-seven (57), and to repeal Section sixty-nine (69), of an act entilted "An act for the organ- 
ization of Drainage Districts, and to provide for the construction, maintenance and repair 
of Drains and Ditches by special assessments on the property benefited thereby," approved 
May 29, 1879, in force July 1, 1879, and to add three (3) new sections amendatory of last said act, 
to enable lands to be drained and protected from overflow, to be known as sections sixty-nine 
(69), seventy (70) and seventy-one (71). Approved and in force May 24, 1881. 

Section 1. That sections three (3), nine (9), twelve (12), thirteen (13), 
sixteen (16), thirty-three (33), thirty-four (34), thirty-five (35), fifty-one (51), 
fifty-three (53), fifty-four (54), fifty-five (55), and fifty-seven (57) of an act en- 
titled '• An act for the organization of drainage districts, and to provide 
for the construction, maintenance and repair of drains and ditches by special 
assessments on the property benefited thereby," approved May 29, 1879, in 
force July 1, 1879, be and the same is hereby amended so as to read as follows : 
and that there be added to said act sections sixty-nine (69), seventy (70) 
and seventy-one (71). 

3. Drainage Districts— how organized— petition.] I 3. The fol- 
lowing proceedings shall be taken for the purpose of organizing a drainage 
district: A petition shall be presented to the town clerk, signed by a majority 
in number of the adult owners of lands lying in said proposed district, and 
they shall be the owners in the aggregate of more than one-third of the lands 
lying in said district, setting forth the boundaries of said district, giving the 
number of sections or fractional parts thereof. Said petition, shall state that 
the lands lying within the boundaries of said proposed district require a 
combined system of drainage or protection from wash or overflow ; that the 
petitioners desire that a drainage district may be organized, embracing the 
lands therein mentioned, for the purpose of constructing, repairing, or main- 
taining a drain or drains, ditch or ditches, embankment or embankments, 
grade or grades, or all, or either, within said district, for agricultural, sani- 
tary or mining purposes, by special assessment upon the property benefited 
thereby. Said petition shall be accompanied by a bond to the drainage com- 
missioners, signed by at least two (2) responsible persons, conditioned for 
the payment of all costs occasioned by said proceedings in case said district 
shall not be organized. 

9. Organization of drainage district.] $9. At the time appointed 
for the adjourned meeting, the commissioners shall meet and examine the 
map and report of the engineer, if any engineer shall have been employed ; 
and said commissioners shall have power to change the boundaries of such 
proposed district from the boundaries given in the petition so as to take in 
land not embraced or exclude lands taken into said proposed district, and 
shall permit additional signatures to be made to the petition by any adult 



476 appendix. 



person or persons owning land in, or owning land desired to be taken into 
such proposed district, to the end that a majority of the adult owners of 
land in the district as finally to be organized, and who shall be the owners 
in the aggregate of more than one-third (£) of such land, shall have signed 
the petition, which facts said commissioners shall find and put such finding 
in writing, and the same shall be filed and the clerk shall enter the same in 
his record, which finding shall be conclusive. And said commissioners may 
adjourn the meeting provided for in this section, not less than five (5) days 
at a time, and not more than fifteen (15) days in all, for the purpose of making 
the necessary examinations and findings, and the clerk shall give notice of 
any such adjournment; and, if from their own examination, said map and 
report if any there be, it shall appear that the lands included in the proposed 
district will be benefited for agricultural, sanitary or mining purposes by the 
construction of a drain, or a combined system of drainage, they shall so find * 
unless they shall find, from the evidence of witnesses then introduced, that 
the cost of the proposed work will exceed the benefits to be derived therefrom. 
And should they find in favor of the petitioners, or should a two-third (f ) ma- 
jority of the owners of land, owning more than one-half (J) of the lands lying 
in said proposed district, still desire the formation of said district, and such 
desire shall be evidenced by a failure to withdraw their signatures from the 
petition, the commissioners shall enter on their record, an order, in writing, 
organizing said drainage district, and such district shall thereupon be- 
declared fully organized. Each district shall be designated by a number, as 

Drainage District No , in township, county, and State 

of Illinois. And when the commissioners shall have organized said district, 
they shall cause a map thereof showing the boundaries thereof to be 
made, and the same shall be filed with the other papers in the case; and at 
any time prior to the making of assessments for benefits, the commissioners 
may alter the boundaries of any district proposed or organized, or hereafter 
proposed or organized in the manner and subject to the conditions provided 
in this act, and the act to which this is an amendment, and shall make order* 
and findings accordingly; and this section shall apply to drainage districts 
organized under this law, of which this act is an amendment, as far as the 
same can be made applicable. And in case it is proposed to change the 
boundaries of any district after the same is organized, and before the assess- 
ments are made in the same, it shall be done on the petition of a majority of 
the number of the adult owners of the land, and who own in the aggregate 
more than one third (£•) thereof in the district as finally changed, and the 
signing of any petition referred to in this act, shall be taken as conclusive 
against the person so signing, that they have accepted the provisions of this 
act and of the act to which this is an amendment, as to their assessments of 
benefits and damages thereunder. 

12. Damages assessed by jury— venire— notice to owners.] § 12: 
Should the commissioners be unable to procure the right of way by agree- 
ment with the owner or owners of any lands over which the work may be 
located, they shall file a statement in writing, with some justice of the peace 
in the vicinity, requesting him to issue a venire for a jury to assess the dam- 
ages in such case or cases; and it shall thereupon be the duty of the justice 
to issue a venire for a jury of six (6) disinterested freeholders, to appear at hi* 
office at a day and hour therein named, not less than five (5) nor more than 
fifteen (15) days from the filing of such statement with the justice, for the 
purpose of assessing the damages in the case or cases mentioned. The jus- 
tice shall cause a notice or notices in writing, to be served upon the owner or 
owners of the lands in question, informing him or them of the time and 
place when the said case or cases will be tried ; said notices may be substan- 
tially in the following form : 

To A B, You are hereby notified that a jury has been called to meet 



DRAINS AND DITCHES. 477 



-at my office in township, county, on the day of , A. 

D. 18 , at o'clock ... m., for the purpose of assessing damages in the 

matter of the drainage commissioners of township, county, 

against you; when and where you can appear and assert your rights in the 

premises if you desire. C S J. P. 

Said notice shall be served by a constable not less than three (3) days nor 
more than fifteen (15) days before the time fixed for trial in the same manner 
and with like effect as processes in civil cases, and his return thereon, shall 
show the manner such service was made, and for such services he shall be 
allowed the same fees as for service of process in civil cases : Provided, that 
where it shall be made to appear that any of such owners are non-resident or 
unknown notice of such proceeding shall be given by publicatiou in some 
newspaper published in said county, two (2) successive weeks prior to the 
time of such hearing, which notice shall be substantially in the form given 
-above. And if any such owner shall be a minor, such notice shall be served 
upon him, and also upon his guardian, if he shall have one, who is a resi- 
dent of this county : Provided, further, that in any case where the commis- 
sioners certify that the damages will probably exceed two hundred dollars 
($200), the proceedings shall be begun in the county court. 

13. Trial — verdict— transcript to be filed.] \ 13. When the jury 
shall appear, as provided in the foregoing section, the trial shall be conducted 
as other cases before a justice of the peace, or county court, as the case may 
be; either party may have the same number of challenges and for the same 
causes as in other cases before justices of the peace, or the county court, as 
the case may be, and if notice shall not have been given according to 
law, or for any other good cause, the court may continue the case from time 
to time, till proper notice shall have been given, or the case is ready for trial. 
The jury shall hear the evidence offered in the case as to the value of the 
land proposed to betaken, and all damages consequent upon the construction 
of the proposed work, and may go upon the premises for the purpose of 
viewing them, and they shall return as their verdict, the amount of damages 
found, if any, in favor of the owner or owners, and against the commission- 
ers; and the justice of the peace, or county judge, shall enter judgment for 
the amount of such verdict, which judgment shall be final and conclusive. 
Vacancies in the panel of jurors Irom whatever cause, shall be filled the same 
as vacancies in other cases, but vacancies shall, in all cases, be filled by free- 
holders, and the same jury shall hear and determine all cases for which the 
venire was issued, and shall return separate verdicts as to each owner or joint 
owners, and the justice or judge, shall thereupon file in the office of the clerk 
of the drainage commissioners, a certified transcript of the proceedings 
before him in each case. 

16. Notice of meetings to hear objections.] I 16. The commis- 
sioners shall cause to be personally served upon all parties owning land to be 
affected by the proposed work, and residing in the county, a written or 
printed notice of the time when and place where they will meet to hear any 
and all objections that may be made to their special assessments for benefits, 
which notice shall be served in case of residents in the county not less than 
three (3) days before the time set for hearing by delivering a copy thereof to 
the party to be served; and the commissioners shall cause to be sent by mail, 
such notice to all owners who do not reside in the county, whose land is to be 
affected, in case their postoffice address is known to commissioners, or any of 
them, or can be ascertained by use of reasonable diligence ; and in case the 
land of any non-resident is to be affected, then publication shall be made in 
some newspaper published in said county, for three (3) successive weeks 
prior to the time of such hearing ; and such meeting to hear objections may 
be adjourned from day to day by public announcement of the commissioners 
made at the meeting until all objections are heard and all persons duly noti- 



478 APPENDIX. 



fled of the first day of meeting, as hereinbefore provided in this section, shall 
take cognizance of all such adjournments without further notification. 

33. Bridges and culverts.] §33. The commissioners shall have power 
and are hereby required to make all necessary bridges and culverts in any 
public highway for the protection of ditches made hereunder, which bridges 
and culverts and the cost of such portion of the drain or ditch lying in such 
highway, shall be paid for out of the road and bridge tax. Whenever, in the 
construction of any drain or ditch, it shall be necessary that the same shall 
be constructed across the right of way of any railroad company, such portion 
of such drain or ditch, lying on such right of way, shall be constructed by 
such railroad company. And should any such railroad company refuse or 
neglect to construct such drain or ditch for a period of thirty (30) days, after 
notice given in writing by commissioners, then the commissioners shall be 
authorized to construct such drain or ditch across such right of way, and 
may collect the necessary cost thereof by suit against said company, in any 
court of competent jurisdiction. 

34. Sub-districts.] \ 34. During the progress of the work, or at any 
subsequent time, the commissioners, when petitioned to create a sub-district 
(within any district organized as aforesaid) for the purpose of constructing 
any drain or drains, grade or grades, embankment or embankments, lateral 
drain or d"ains, for the further reclamation of lands within such sub-district, 
by special assessment of the property benefited thereby, shall be governed 
by the provisions of this act and the act to which this is an amendment, 
which are applicable hereto ; but this section shall not be construed as pre- 
venting the commissioners from causing to be constructed, from time to time, 
proper ditches and embankments anywhere in the main district, until all 
the land thereof is properly drained and protected, which they may do by 
special assessments on all the land in the main district benefited by such 
improvement, which additional improvements they shall always undertake 
on a petition of a majority of the adult owners of land in such district, and 
shall always be governed by the general provisions of this act and the act to 
which this act is an amendment, in respect to damages, right of way, and assess- 
ments for benefits, and in all other respects wherein the same is applicable. 
And in case of drainage districts organized or petitioned for, lying adjacent to 
each other, the commissioners and authorities of the respective districts, 
shall have power to adjust by agreement together, any question of right and 
justice, with respect to either district, or any owner of land in either, satis- 
factory to the parties concerned, and not inconsistent with this act, or the act 
to which this is an amendment. 

35. Not to prevent other drainage.] §35. Nothing in this act shall 
oe construed to forbid or prevent the drainage of any lands, the drainage of 
which would require to be conducted to the same outlet through which the 
waters of any ditch constructed under this act shall flow, and the owner of such 
lands shall have the right to construct and maintain all such lateral ditches 
over and across any land intervening between such tract to be drained and 
the main ditch or outlet. But, provided, further, that any land lying out- 
side of the drainage district as organized, the owner or owners of which 
shall hereafter make connection with the main ditch or drain, or any ditch 
or drain within the district as organized, shall be deemed to have made vol- 
untary application to be included in such drainage district, and such land 
shall be included in such drainage district, and assessed with its fair propor- 
tion of the costs of the ditches or drains or other works, to be determined by 
said commissioners under the provisions of this act, and the act to which this 
is an amendment. 

51. Proceedings on hearing-^appointment of commissioners.] \ 51. 
Should the court find against the petitioners, it shall enter an order to that 
effect, and the petition shall thereupon be dismissed, at the cost of the peti- 



DRAINS AND DITCHES. 479 



tioners. Should the court find in favor of the petitioners, it shall enter an 
order to that effect, and it shall thereupon be the duty of the court to 
appoint three drainage commissioners for said district, who shall at once pro- 
ceed to the examination, survey and organization of said district in all mat- 
ters, as provided in sections eight (8) and nine (9) of the act to which this is 
an amendment; and the clerk shall give notice of the time when and place 
where the commissioners will meet to complete the organization of such dis- 
trict, which time shall not be more than thirty (30) days subsequent to the 
date of the appointment of such commissioners. At the meeting for com- 
pleting the organization of such district, the proceedings shall, in all respects, 
so far as the same are applicable and not otherwise provided for in this act, 
conform to the requirements of the act to which this is an amendment, as 
set forth in the matter of the formation of districts lying wholly within a 
township. Upon the filingiof the order of the commissioners declaring such 
district organized, the clerk shall enter the same of record, and said district 
shall thereupon be deemed fully organized. 

58. Notice of election.] \ 53. So soon as a special drainage district 
has been organized, it shall be the duty of the county clerk, who shall be the 
clerk of the commissioners thereof, to give notice, by posting written or 
printed notices in at least six public places in said district, that on a day 
therein named, and at an hour not later than two (2) o'clock p. m., not less 
than ten (10) days from the date of notice, at a place in said notice designa- 
ted, an election will be held for the purpose of electing three (3) drainage 
commissioners for said district. 

54. Election— commissioners— term of office.] \ 54. In all elec- 
tions held for the election of drainage commissioners, the drainage commis- 
sioners then in office shall be the judges of election ; and in the absence of 
any of them, the electors present may choose a person or persons to fill the 
vacancy or vacancies. The judges shall choose one of their number to act as 
clerk. "Every adult owner of land in the district, whether residing within 
or without the district, shall be a voter and eligible to the office of drainage 
commissioner. The election shall close at four o'clock p. m., unless the 
judges of election shall determine that it is proper to hold the polls open 
until six o'clock p. m. to accommodate the voters. The judges of election 
shall canvass the votes at the close of the election, and the three persons, or 
so many persons as there are vacancies to be filled, having the highest num- 
ber of votes shall be declared elected. In case of a tie, the judges shall 
determine by lot who is elected, and they shall also determine by lot their 
respective terms of office, one of whom shall serve for one year, one for two 
years, and one for three years, or such parts thereof as may expire upon the 
election of their successors, respectively, at the annual meeting which shall 
be held each year, on the first Saturday of September, when there shall be 
elected one drainage commissioner, to hold his office for three years, and 
until his successor is chosen and qualified. In case of a vacancy in the office 
from resignation, death, removal or refusal to serve, the commissioners in 
office shall fill the vacancy, by appointment, until his successor shall be 
chosen at an annual meeting and qualified. Within ten days after every 
election of drainage commissioners, the judges of election shall cause the 
poll book to be delivered to the county clerk, with a certificate thereon show- 
ing the names of those elected drainage commissioners, and the terms of 
each. The poll book shall be filed by the county clerk and be evidence of 
such election. Each commissioner shall, within ten days after his election 
or appointment, take an oath to faithfully discharge the duty of his office as 
drainage commissioner, which oath shall be signed by him and filed in the 
office of the clerk. 

55. OATH— BOND— TREASURER— BOND— DUTIES— TERM OF OFFICE.] \ 55. 

Said commissioners shall thereupon each take an oath to faithfully discharge 



480 APPENDIX. 



the duties of his office as drainage commissioner, which oath shall be signed 
by him and filed in the office of the clerk. They shall then appoint some 
person, who shall be an owner of real estate in such district and a resident 
of the county in which the drainage district or a part thereof shall be 
located, as treasurer, who shall give bond to the commissioners in such sum 
as shall be fixed by them, not less than double the amount likely to come 
into his hands in any one year, which bond shall be signed by at least two 

(2) responsible securities, and approved by the commissioners, and filed in 
the office of the clerk. He shall hold his office for two (2) years, but may be 
removed by the commissioners at any time for cause. He shall have like 
powers and perform the same duties herein provided for other treasurers of 
drainage districts. He shall pay out moneys only on orders signed by the 
-commissioners or a majority of them. 4 

57. Appeals.] \ 57. Appeals from the orders of the commissioners of 
special drainage districts confirming special assessments, shall be filed with 
the clerk of the county in which the proceedings originated ; and if the 
county is under township organization, the clerk shall summon any three 

(3) supervisors of the county to hear the appeal. If the county is not under 
township organization, then the board of appeal, provided for such counties 
by the act to which this is an amendment, shall constitute the board of 
appeal, and be notified by the clerk. The time, mariner, trial and effect of 
the appeal, and the decision of the appeal board shall, except as provided in 
this act, conform, as near as possible 'to the provisions relating to appeals in 
township districts, in the act to which this is an amendment. 

69. Leaving drains open— penalty.] \ 69. Whoever has opened or 
may hereafter open, or shall allow to remain open, any drain or ditch into 
the drain or ditch of another, shall be liable to pay to the owner or owners 
of such original drain or ditch a just and reasonable sum for such privilege, 
to be recovered in an action at law, in any court of competent jurisdiction 
in this State ; and in determining the amount of damages to be recovered, 
the court shall take into consideration the cost of such original drain or 
ditch, together with the cost of the drain or ditch of defendant and the 
benefits which accrue to the defendant in such action by reason of the open- 
ing or connecting of his drain or ditch into or with such original drain or 
ditch, as aforesaid, the same as though all of said drains or ditches formed a 
-combined system of drainage within a drainage district duly organized. 

70. Owners may sue jointly.] I 70. Two (2) or more owners of any 
drain or drains, ditch or ditches, which have been opened or constructed, or 
may hereafter be opened or constructed, through or upon their respective 
tracts of land so as to form a continuous outlet for water, may jointly main- 
tain an action against any person or persons who shall open or allow to 
remain open any drain or ditch into such original drain or drains, ditch or 
ditches, belonging to such owners as aforesaid, in the same manner that one 
(1) person may maintain such action as provided in section two (2) of 
this act. 

71. Act not affect prior laws.] 1 71. This act shall not be con- 
strued to repeal or interfere with the execution and enforcement of other 
laws on the subject of drainage or levees and drains, passed by this General 
Assembly. The provisions of this act shall not be construed as affecting any 
rights that have accrued, or any cause of action pending or existing at the 
time of going into effect of this act. And all drainage districts organized or 
partly organized under the act of which this act is an amendment, and all 
persons interested in any such district as owners of land therein or adjacent 
thereto, or as officers thereof, or in any way^ shall have all the benefits, 
rights and powers conferred by this act, the same as any district hereafter 
organized or petitioned for. Section sixty-nine (69) of the act to which this 
.act is an amendment is hereby repealed. 

2. Emergency.] I 2. Emergency clause. 



ELECTIONS. 481 



ELECTIONS. 
See Ante p. 399. 

AN ACT to amend sections sixteen (16) seventeen (17), nineteen (19), twenty-one (21), twenty-two 
(22), twenty-three (23), and twenty-four (24), of an act entitled "An act in regard to Elections, 
and to provide for filling vacancies in elective offices," approved April 3, 18/2, in force July 1, 
1872. Approved May 10, 1881. In force July 1, 1881. 

Section 1. County officers— their elections.] That sections six- 
teen (16), seventeen (17), nineteen (19), twenty-one (21), twenty-two (22), 
twenty-three (23) and twenty-four (24), of an act entitled " An act in regard 
to elections, and to provide for filling vacancies in elective offices," approved 
April 3, 1872, in force July 1, 1872, be amended so as to read as follows : 

16. Election of county judges and county clerks.] \ 16. The 
county judges aud county clerks shall be elected on Tuesday, next after the 
first Monday of November, 1882, and every four years thereafter, and shall 
enter upon the duties of their offices on the first Monday of December after 
their election. 

17. Election of sheriffs and coroners.] \ 17. The sheriffs shall 
be elected on Tuesday, next after the first Monday of November, 1882, and 
every four years thereafter, and shall enter upon the duties of their offices 
on the firstMonday of December after their election ; and coroners shall be 
elected on Tuesday, next after the first Monday of November, 1882, who 
shall hold their offices two years, and on Tuesday, next after the first 
Monday of November, 1884, and every four years thereafter, there shall be 
elected a coroner in each of the counties of this State, aud they shall enter 
upon their offices on the first Monday of December after their elections. 

19. Election of the clerk of the superior court of cook county.] 
§ 19. The clerk of the Superior Court of Cook county, shall be elected on 
Tuesday, next after the first Monday of November, A. D. 1884, and every 
four years (4) thereafter ; and shall enter upon his office on the first Monday 
of December after his election. 

21. Election of county treasurers.] \ 21. The county treasurers 
shall be elected on Tuesday, next after the first Monday of November, 1882, 
and every four (4) years thereafter ; they shall enter upon their offices on the 
first Monday of December after their election. 

23. Election of county surveyors.] \ 22. A county surveyor shall 
be elected in and for each county on Tuesday, next after the first Monday of 
November in the year 1884, and every four (4) years thereafter ; and shall 
enter upon his office on the first Monday in December after their election. 

24. Election of county superintendents of schools.] \ 23. The 
county superintendents of schools shall be elected on Tuesday, next after the 
first Monday of November, 1882, and every four years thereafter ; they shall 
enter upon their offices on the first Monday of December after their election. 

25. Election of States Attorneys.] § 24. A State's attorney shall 
be elected in each county on Tuesday, next after the first Monday of 
November, 1884, and every four years thereafter, and shall enter upon his 
office on the first Monday in December after his election. 



482 APPENDIX. 

REVENUE. 

. [See Ante p. 281.] 

AN AOT to amend an Act entitled " An act to amend Sections fifty-eierht (58,) sixty-six (66,) as 
heretofore amended; sixty-nine (69,) seventy (70.) seventy-six (76,) eighty-six (86,) eighty-nine 
(89,) ninety (90,) ninety-two (92.) as heretofore amended : ninety-eight (98.) one hundred and 
twenty-three (123,) one hundred and twenty-five (125.) one hundred and twenty-six (126,) one 
hundred and twenty-eight (128,) one hundred and thirty-two (132,) one hundred and sixty-one 
(161,) one hundred and sixty-three (163,) one hundred and seventy (170,) one hundred and 
seventy-one (171,) one hundred and seventy-two (172,) one hundred and eighty (180,) one 
hundred and eighty-one (181,) as heretofore amended; one hundred and eighty-eight (188,) 
one hundred and eighty-nine (189,) one hundred and ninety (190,) one hundred and ninety- 
three (193,) as heretofore amended; one hundred and ninety-four (194 ) two hundred (200.) and 
two hundred and eleven (211,) of an Act entitled ' An Act for the assessment of property and 
for the levy and collection of taxes,'" approved March 30, 1872, and to add to said act an 
additional Section, to be known as Section one hundred and twenty-four (124.) Approved June 
2, 1881. In force July 1, 1881. 

Section 1. That section fifty-eight (58,) sixty-six (66,) sixty-nine (69,) 
seventy (70,) seventy-six (76,) eighty-six (86,) eighty-nine (89,) ninety (90,) 
ninety-two (92,) ninety-eight (98,) one hundred and twenty-three (123,) one 
hundred and twenty-five (125,) one hundred and twenty-six (126,) one 
hundred and twenty-eight (128,) one hundred and thirty-two (132 J one 
hundred and sixty-three (163,) one hundred and eighty (180,) as heretofore 
amended by act in force July 1, 1879, be and the same are hereby amended 
so as to read as follows : 

REAL PROPERTY — AS TO WHAT TIME LISTED — WHO LIABLE FOR TAX. 

58. Real property— listed May 1st. g 58. All real property in this 
State, subject to taxation under this act, including real estate becoming tax- 
able for the first time, shall be listed to the owners thereof, by such owners, 
their agents, county clerks or assessors, or the county board, and assessed for 
the year one thousand eight hundred and eighty-one, and yearly thereafter, 
with reference to the amount owned on the first day of May in each year, 
including all property purchased on that day : Provided, that no assessment 
of real property shall be considered as illegal by reason of the same not 
being listed or assessed in the name of the owners thereof. 

making and delivery of assessment books and blanks. 

66. how property to be listed— what books to contain.] \ 66. 
The county clerk shall make up for the several towns or districts in his 
county, in books to be provided for that purpose, the list of lands and lots to 
be assessed for taxes. When a whole section, half section, quarter section, 
or half-quarter section belongs to one owner, it shall, at the request of the 
owner or his agent, be listed as one tract, and when all lots in the same block 
belong to one owner, they shall, at the request of the owner or his agent, be 
listed as a block. When several adjoining lots in the same block belong to 
the same owner, they shall, at the request of the owner or his agent, be 
included in one description : Provided, that when any tract or parcel of real 
estate is situated in more than one town, or in more than one school, road or 
other district, the portion thereof in each town or district shall be listed 
separately. Said clerk shall enter in the proper column , opposite the respec- 
tive tracts or lots, the name of the owner thereof, so far as he shall be able to 
ascertain the same. Said books shall contain columns in which may be 
shown the number of acres or lots improved, and the value thereof ; the 
number of acres or lots not improved, and the value thereof ; the total value, 
and such other columns as may be required. 

69. Books to be ready may 1st.] g 69. The county clerk shall cause 
such assessment books, and all blanks necessary to be used by the assessor in 
the assessment of real and personal property, to be in readiness for delivery 
to the assessors on or before the first day of May in each year. 



KEVENUE. 483 



70. Assessor to call for books.] \ 70. It shall be the duty of each 
county, town or district assessor to call on the county clerk on or before the 
first day of May in each year, and receive the necessary books and blanks 
for the assessment of property, and the failure of any assessor, so to do, shall 
be deemed sufficient cause to declare his office vacant, and for the appoint- 
ment of a successor. 

76. How and when real estate assessed.] \ 76. Assessors shall, 
between the first day of May and the first day of July of each year, actually 
view and determine, as nearly as practicable, the fair cash value of each tract 
or lot of land listed for taxation, and set down in proper columns, in the 
book furnished him, the value of each tract or lot improved, the value of 
each tract or lot not improved, and the total value. He shall also set down, 
in separate columns, the number of acres in wheat, corn, oats, meadow, and 
other field products, in inclosed pastures, orchards and woodlands, whether 
inclosed or not, in that year. 

review of assessment by town board, in counties under township 

organization. 
86. Review of assessment— time— proceedings.] $ 86. In counties 
under township organization, the assessor, clerk and supervisor of the town 
shall meet on the fourth Monday of June, for the purpose of reviewing the 
assessment of property in such town. And on the application of any person 
considering himself aggrieved, or who shall complain that the property of 
another is assessed too low, they shall review the assessment, and correct the 
same, as shall appear to them just. No complaint that an other is assessed 
too low, shall be acted upon until the person so assessed, or his agent, shall 
be notified in writing of such complaint, if a resident of the county. Any 
two of said officers meeting, are authorized to act, and they may adjourn 
from day to day, till they shall have finished the hearing of all cases pre- 
sented on said day. Property assessed after the fourth Monday of June shall 
be subject to complaint to the county board, subject to the rules specified in 
this section. 

RETURN OF ASSESSOR TO COUNTY CLERK. 

89. Assessor to add up columns, etc.] \ 89. The assessor shall add 
up and note the aggregate of each column in his assessment books of real 
and personal property ; and shall also add in each book, under proper head- 
ings, a tabular statement, showing the footings of the several columns upon 
each page ; and shall add up and set down under the respective headings the 
totals of the several columns. When an assessor returns several assessment 
books of real or personal property, he shall, in addition to the tabular state- 
ments herein required, return a statement in like form, showing the totals of 
all th e books. 

90. Return. ] \ 90. The assessor shall on or before the first day of July 
of the year for which the assessment is made, return his assessment books 
to the county clerk, verified by his affidavit, substantially in the foil owing 
form : 

STATE OF ILLINOIS, ) 
...County. J ss ' 

I, assessor of do solemnly swear that the book to which this is attached, 

contains a correct and full list of all the real property [or "personal property," as the case may be,] 

subject to taxation in so far as I have been able to ascertain the same : and that the 

assessed value set down in the proper column opposite the several kinds and descriptions of 
property is, in each case, the fair cash value of such property, to the best of my knowledge and 
belief, [where the assessment has been corrected by a town board, "except as corrected by the 
town board,"] and that the footings of the several columns in said book, and tabular statement 
returned herewith, is correct as I verily believe. 

92. Books delivered to town clerk — review of assessment.] — 
\ 92. The several assessment books shall be filed in the office of the county 
clerk, and there remain open to the inspection of all persons : Provided, 



484 APPENDIX. 



that the county clerk shall, in the month of April, deliver to the town clerks 
of the several towns in the county, the assessment books of their respective 
towns for the previous year, such books to be returned by the town clerks to 
the county clerk's office before the first of July of the same year. 

REPORT OF ASSESSMENT BY THE CLERK TO THE AUDITOR FOR EQUALIZA- 
TION. 

98. Clerk's report to auditor.] \ 98. On or before the tenth day of 
July, annually, if shall be the duty of the county clerks, upon the receipt of 
the assessment books, to make out and transmit to the Auditor an abstract of 
the assessment of property, showing the number, value and average value of 
each kind of enumerated property, as shown by the assessment ; the value 
of each item of unenumerated property, and total value of personal property; 
the length of main track, the length of side track, and the numbers, values 
and average value of each separate item of railroad property ; and number 
of acres, value and average value of improved lands; the number of acres, 
value and average value of unimproved lands ; the total number of acres, 
total value and average value, per acre, of all lands ; the number, value 
and average value of improved town and city lots; the number, value and 
average value of unimproved town and city lots; the total number of lots, 
total value and average value of all lots, and the total value of all property ; 
the number of acres in cultivation of wheat, corn, oats, meadow, and other 
field products, in inclosed pasture, orchards and woodland, whether inclosed 
or not in that year. Said abstracts shall be made out on blanks, which it 
shall be the duty of the Auditor to furnish the county clerks for that pur- 
pose. The values to be given in said abstract shall be the assessed valua- 
tions, except in the case of railroad property denominated "railroad track" 
and ''rolling stock," the value of which shall be given as returned by the 
railroad company to the county clerk. The county clerk shall, at the same 
time, and accompanying said abstract, furnish a detailed statement of the 
railroad property denominated "railroad track" and "rolling stock," reported 
by each road located in or through their counties. If there are any roads so 
located that have not made their reports as required by this act, the clerk 
shall report the fact, giving the name of such railroad. 

COLLECTORS' BOOKS — EXTENDING RATES. 

123. Collectors' books.] \. 123. The county clerk shall, annually, 
make out for the use of collectors, in books to be furnished by the county, 
correct lists of taxable property, as assessed and equalized. 

125. Books— how prepared.] \ 125. The respective county clerks 
shall cause the collector's books to be properly ruled for the several classes of 
property, providing for each class three columns for values, — the first to 
show the assessed valuation ; the second to show the valuation as corrected 
and equalized by the county board ; and the third to show the valuation as 
equalized or assessed by the State Board of Equalization. Said books to 
contain proper columns for the extension of the several kinds of taxes, and 
other purposes. 

126. Rates — how extended — valuation — equalization.] § 126. 
Said clerks shall extend the rates of addition or deduction ordered by the 
county board and State Board of Equalization, in the several columns pro- 
vided for that purpose. The rates per cent, ordered by the State Board of 
Equalization shall be extended on the assessed valuation of property, as 
corrected and equalized by the county board— except, that in case of railroad 
property denominated "railroad track" and "rolling stock," said rates shall 
be extended on the listed valuations of such designated property. In all 
cases of extension of valuations, where the equalized valuation shall happen 
to be fractional, the clerk shall reject all such fractions as may fall below 
fifty cents ; fractions of fifty cents or more shall be extended as one dollar. 



REVENUE. 485 



128. State and county taxes.] \ 12S. All State and county taxes 
shall be extended by the respective county clerks upon the property in their 
counties, upon the valuation produced by the equalization and assessment of 
property by the State Board of Equalization. Town, district, village, city 
and other taxes, shall also be extended against such assessed aud equalized 
valuation of property within their respective jurisdictions. In the extension 
of taxes, the fraction of a cent shall be extended as one cent. 

132. Collector's warrant.] \ 132. To each collector's book a w r arrant, 
under the hand and official seal of the county clerk, shall be annexed, com- 
manding the collector to collect from the several persons named in said 
book, the several sums entered in the column of totals opposite their respec- 
tive names. The warrant shall direct the collector to pay over the several 
kinds of taxes that may be collected by him, to the respective officers en- 
titled thereto, less the compensation for collection allow T ed him by law. 

163. Entry of payment — receipt — evidence — name, etc., of own- 
er.] \ 163. Whenever any person shall pay the taxes charged on any 
property, the collector shall enter such payment in his book, and give a 
receipt therefor, specifying for whom paid, the amount paid, what year paid 
for, and the property and value thereof on which the same was paid, accord- 
ing to its description in the collector's books, in whole or in part of such des- 
cription, as the case may be; and such entry and receipt shall bear the 
genuine signature of the collector or his deputy receiving such payment; 
.and whenever it shall appear that any receipt for'the payment of taxes shall 
be lost or destroyed, the entry so made may be read in evidence in lieu there- 
of. The collector shall enter the name of the owner, or the person paying 
tax, opposite each tract or lot of land, when he collects the tax thereon, and 
the post-office address of the person paying such tax. 

180. Form of receipt.] \ 180. On the application of any person to 
pay any tax or special assessment upon any real property, it shall be the 
duty of the county collector to make out to such person a" receipt, in which 
shall be noted all taxes and assessments upon such property, returned to such 
collector and not previously paid. 

I 2. Such act is hereby amended by adding thereto, the following ; to be 
known as section one hundred and twenty-four (12-4) : 

124. Bo.>ks.] | 124. In counties not under township organization such 
book shall be made up by congressional townships; but parts of fractional 
townships, less than full townships, may be added to full townships, at the 
discretion of the county board. In counties under township organization, 
said books shall be made to correspond with the organized townships. 
Separate books may be made for the collection of all taxes within the cor- 
porate limits of cities, towns and villages. This section shall not be con- 
strued to interfere with the tax book provided for in this act, for the use of 
county collectors, for collecting all taxes charged against railroad property 
and the capital stock of telegraph companies. 

DELIVERY OF COLLECTOR'S BOOKS— WARRANTS. 

AN ACT to amend Section one hundred and thirty-five (135) of an act entitled 'An Act for the 
Assessment of Property and for the Lew and Collection of Taxes," approved March 30 1872 in 
force July 1. 1872. Approved May 31, 1881. In force July 1, 1881. 

Section 1. That section one hundred and thirty-five (135) of an act 
entitled "An act for the assessment of property, and for the levy and collec- 
tion of taxes," (approved March 30, 1872, in force July 1, 1872,) he amended 
so as to hereafter read as follows. 

135. When delivered.] § 135. The respective county clerks shall, on 
or before the twentieth day after the first day of December, annually, or as 
soon thereafter as the collectors are duly qualified, deliver to them the books 
for the collection of taxes; and it shall be the duty of the collectors, within 



486 APPENDIX. 



such time, or as soon thereafter as they are qualified to call at the clerk's 
office and receive said books. The tax book, provided for collecting all taxes 
charged against railroad property and the capital stock of telegraph com- 
panies, shall be delivered to the county collector within the same time, annu- 
ally, or as soon thereafter as he is qualified. 

RETURN OF TOWN AND DISTRICT COLLECTORS TO THE COUNTY COLLECTOR. 

AN ACT to amend Section one hundred and sixty-nine (169), of an act entitled "AN ACT for the 
Assessment of Property and for the .Levy and Collection of Taxes," approved March 30, 1872. In 
force July 1, 1872. As amended by an act approved May 3, 1873, approved and in force May 
31, 1881. 

Section 1. That section one hundred and sixty-nine (169), of an act 
entitled "An act for the assessment of property and for the levy and collec- 
tion of taxes, approved March 30, 1872, in force July 1, 1872, as amended by 
an act approved May 3, 1873, be and the same is hereby amended to read as 
follows : 

169. When return made.] § 169. Town and district collectors shall 
return the tax books and make final settlement for the amount of taxes 
placed in their hands for collection, on or before the tenth day of March 
next after receiving the tax books : Provided, that the county collector may 
first notify in writing, the several town or district collectors upon what day, 
within twenty days after the tenth day of March they shall appear at his 
office to make final settlement, and at the time of making return to the 
county collector, each town or district collector in counties under township 
organization, shall make out and deliver to the county collector a detailed 
statement in writing of the amount of taxes he has been unable to collect on 
real estate and from persons charged with personal property taxes, which 
statement shall show each kind of tax, the same as in the tax book delivered 
to him by the county clerk, and shall show the number of the page of the 
tax book and the number of the line of the page on which the item appears 
to be delinquent, and in case where no taxes have been paid on any one page 
on the collector's book, the page footings of the taxes on such page may be 
copied into such statement. It shall not be necessary to give in the state- 
ment the description of the real property delinquent, nor the names of the 
owners thereof, nor the names of the persons delinquent for personal pro- 
perty taxes. The town or district collector shall add up the delinquent taxes 
in said statement and make a summary thereof, setting forth the aggregate 
amount of each kind of tax and the total delinquent, in the same manner as 
in his warrant, and shall make oath that said statement is true and correct. 

I 2. Whereas, there is no provision in the revenue-law requiring the town 
or district collector to make a statement whereby a correct and satisfactory 
settlement can be made with the county collector, therefore, an emergency 
exists, and this act shall take effect and be in force from and after its passage. 

AN ACT to amend Section two hundred and three of an act, entitled "An act for the Assessment 
of Property and for the Levy and Collection of Taxes," approved March 30, 1872. Approved 
June 2, 1881. In force July 1, 1881. 

Section 1. That section two hundred and three of an act, entitled "An 
act for the assessment of property and for the levy and collection of taxes," 
approved March 30, 1872, be, and the same is, hereby amended to read as 
follows : 

203. Forfeited to the state.] § 203. Every tract or lot so offered 
at public sale, and not sold for want of bidders, shall be forfeited to the State 
of Illinois : 

Provided, however, that whenever the county judge, county clerk and 
county treasurer shall certify that the taxes on forfeited lands equals or ex- 
ceeds the actual value of such lands, the officer directed by law to expose for 
sale lands for delinquent taxes shall, on the receipt of such certificate, offer 



REVENUE. 487 



for sale to the highest bidder the tract or lands, in such certificate described, 
after first giving ten days' notice of the time and place of sale, together with 
a description of the tract or lands so to be offered. And a certificate of pur- 
chase shall be issued to the purchaser at such sale as in other cases in this act 
provided ; and the county collector shall receive credit in his settlement with 
the custodian of the several funds, for which such tax was levied for the 
amount not realized by such sale. And the amount received from any such 
sale shall be paid by such collector, pro rata, to the custodian of the several 
funds entitled thereto. 

AN ACT to amend Section two hundred and twenty-nine (229) of an act entitled "An Act for the 
Assessment of Property and for the Levy and Collection of Taxes," approved March 30, 1872. 
Approved May 31, 1881. In force July 1, 1881. 

Section 1. That section two hundred and twenty-nine (229), of an act 
entitled "An act for the levy and collection of taxes," approved March 30, 
1872, in force July 1, 1872, be and is hereby amended to read as follows : 

229. Back tax added— effect.] g 229. The amount due on lands 
and lots previously forfeited to the State, and remaining unpaid on the first 
day of November, shall be added to the tax of the current year; and the 
amount thereof shall be reported against the county collector with the 
amount of taxes for said year; and the amount so charged shall be placed on 
the tax books, collected and paid over in like manner as other taxes. The 
county collector is hereby authorized to advertise and sell said property in 
the manner hereiubefore required by this act, as if said property had never 
been forfeited to the State ; and the county, city, town or school district may, 
by their agent, attend such sale for taxes and buy said lands and acquire the 
same rights that individuals now have under the law, and acquire, hold, sell 
and dispose of said title thereto, the same as and in the same manner 
as individuals may do under the laws of this State, in case of sale for taxes. 
Said additions and sales shall be continued from year to year, until the taxes 
on said property are paid, by sale or otherwise. 

AX ACT to amend Section 230 of an act entitled "An act for the Assessment of Property and for 
the Levy and Collection of Taxes." approved March 30. 1872. in force July 1. 1872, approved May 
29, 1879, in force July 1, 1879, as amended bv an act approved Mav 29, 1879, in force July 1, 1879. 
Approved May 30, 1881. In force July 1, 1881. 

Section 1. That section 230, of an act entiled "An act for the assessment 
of propertv and for the levy and collection of taxes," approved March 30, 
1872, in force July 1, 1872, approved May, 29, 1879, in force July 1, 1879, as 
amended by an act approved May 29, 1879, in force July 1, 1879, be, and the 
same is hereby amended so as to read as follows : 

230. Suit for tax on forfeited property.] § 230. The county 
board may, at any time, institute suit in an action of debt in the name of the 
people of the State of Illinois in any court of competent jurisdiction for the 
whole amount due on forfeited property; or any county, city town, school 
district or other municipal corporation, to which any such tax may be due, 
may, at any time institute suit in an action of debt in its own name, before 
any court of competent jurisdiction, for the amount of such tax due any 
such corporation on forfeited property, and prosecute the same to final judg- 
ment. The county board may also, at any time, institute suit in an action 
of debt in the name of the people of the State of Illinois, in any court of 
competent jurisdiction, against any person, firm or corporation, for the 
recovery of any personal property tax due from such person, firm or corpor- 
ation, and in any such suit for the recovery of personal property tax, the 
return of the county collector that such taxes are delinquent, shall be prima 
facie evidence that such taxes are due and unpaid, but the fact tbat such 
taxes are due and unpaid may be proven by other competent testimony. 
This act shall apply to all taxes heretofore levied against any person, firm or 
corporation and now upon any assessment book or roll, and on the sale of 



488 APPENDIX. 



any property following such judgment on execution or otherwise, any such 
county, city, town, school district or other municipal corporation, interested 
in the collection of said tax, may become purchaser at such sale of either 
real or personal property, and if the property so sold is not redeemed (in case 
of real estate) may acquire, hold, sell and dispose of the title thereto, the 
same as individuals may do under the laws of this State, and, in any such 
suit or trial for forfeited taxes, the fact that real estate or personal property is 
assessed to a person, firm or corporation, shall be prima facia evidence that 
such person, firm or corporation was the owner thereof, and liable for the 
taxes for the year or years for which the assessment was made, and such fact 
may be proved by the introduction in evidence of the proper assessment 
book or roll, or other competent proof. 

AN ACT to amend Section two hundred and fifty-three (253) of an act entitled "An Act for the 
Assessment of Property and for the Lew and Collection of Taxes," approved March 30, 1872. 
Approved May 30, 1881. In force July 1, 1881. 

Section 1. That section two hundred and fifty-three (253) of an act 
entitled "An act for the assessment of property, and for the levy and collec- 
tion of taxes," approved March 30, 1872, be and the same is hereby amended 
so as to read as follows : 

253. Of tax on real estate.] I 253. The taxes upon real property, 
together with all penalties, interests and costs, that may accrue thereon, 
shall be a prior and first lien on such real property, superior to all other liens 
and incumbrances, from and including the first day of May in the year in 
which the taxes are levied until the same are paid ; which lien may be fore- 
closed in equity in any court of competent jurisdiction in the name of the 
people of the State of Illinois, whenever the taxes for two or more years, 
upon the same description of property, shall have been forfeited to the State, 
and may be sold under the order of the court by the person having authority 
to receive State and county taxes, with the same notice to interested parties 
and right of redemption from said sale, as is now provided by law, and in 
conformity with sections four (4) and (5) of article IX of the Constitution of 
this State. In' proceedings to foreclose the tax lien on any real property, the 
amount due on the collector's books against the said property shall be prima 
facie evidence of the amount of taxes against the said real property. When 
any taxes are collected in any such foreclosure proceedings, they shall be 
paid to the county collector, to be distributed by him to the respective 
authorities entitled thereto. 

TOWNSHIP INSURANCE COMPANIES. 

See Ante p. 275. 

AN ACT to give Contiguous Territory the right to become incorporated with Township Insurance 
Companies. Approved May 31, 1881. In force July 1, 1881. 

1. Organization.] \ 1. That it shall be lawful for any township insur- 
ance company, already organized or hereafter to be organized, having less 
than six political townships in its organization, to accept or receive into its 
said organization one or more adjoining congressional or political townships: 
Provided, however, that such organization shall not, in any event, embrace 
more than six such townships. 

2. Contiguous territory.] I 2. Any number of persons, not less 
than ten, who, collectively, shall own property of not less than $15,000 in 
value, which they desire to have insured, residing in any congressional or 
political township, which shall not already be in some township insurance 
company, may petition any township insurance company, already organized 
(to which said township may be contiguous) praying to have said township 
added to and embraced in said township insurance company. Said petition 
shall be accompanied by the written consent of a full majority of the then 
policy holders in said company, owning not less then two-thirds of the 



PUBLICATION OF ANNUAL STATEMENTS. 489 



insurance represented by the policies of said company, consenting to the 
prayer of said petition. Upon the receipt of such petition, accompanied by 
such consent, the board of directors of said company may, by vote, accept 
and receive into said organization such township so petitioning. If such 
township so petitioning shall be so received and accepted by such township 
insurance organization, the secretary of such township insurance company 
shall at once so notify the Auditor of Public Accounts, stating the name of 
the township so added and the date the acceptance was so made. 

3. Receiving- other township.] \ 3. The accepting or receiving of 
any such township, as aforesaid, shall in no way impair the obligations of 
said township insurance company, or that of the policy holders or members 
thereof. 

4. Township received.] \ 4. From and after the date of such accept- 
ance by such township insurance company, said township so received shall, 
to all intents and purposes, be a part and parcel of such township insurance 
company, the same as though embraced therein in its original organization. 

PUBLICATION OF ANNUAL STATEMENTS. 

AN ACT to require officers having in their custody public funds, to prepare and Publish an Annual 
Statement of the receipt and disbursement of such funds. Approved May 30, 1881. In force 
July 1, 1881. 

1. Officers to publish annual statements.] § 1. That each and 
every public officer elected or appointed, of each and every county and 
township in this State, who shall, by virtue of his or her office, have the 
custody of public funds, shall at the expiration of each fiscal year, prepare a 
statement of the amount of public funds received and expended by him or 
her during the fiscal year just closed; which statement shall show the 
amount of public funds, if any, on hand at the commencement of said fiscal 
year, the amount of public funds received, and from what sources received, 
the amount of public funds expended and for what purposes exnended ; and 
the officer making such statement shall subscribe and swear to the same 
before some person authorized to administer oaths ; and such officer shall 
cause such statement to be published in some newspapei published in the 
county in which such officer -holds his or her office, lor one week, and if no 
newspaper be published in such county, then such officer shall make three 
(3) written copies of such statement, and post them in three (3) of the most 
public places nearest to the location of his or her office : 

Provided, that the provisions of this act shall not apply to sheriffs, circuit 
clerks, county clerks, county recorders, county superintendents of schools, 
county treasurers, county collectors and township collectors in counties 
under township organization : And provided further, that the cost for the 
publication of said statement shall not exceed the sum of one dollar ($1) per 
one hundred words, to be paid out of the funds in the hands of the officer 
making such statement ; And provided further, that said public officer shall 
not be required to have said statement published if he shall be unable to 
procure such publication at the price allowed by this act. 

2. Penalty.] \ 2. Any public officer of any county or township in 
this State, who, by virtue of his or her office shall have the custody of public 
funds, and who shall refuse or neglect to comply with the provisions of the 
first section of this act, shall be deemed guilty of a misdemeanor, and upon 
conviction thereof, shall be fined not less than fifty dollars ($50), nor more 
than five hundred dollars ($500), at the discretion of the court, which fine 
shall be paid into the treasury of the county or township in which the 
officer convicted of said misdemeanor shall hold his or her office ; and it 
shall be the duty of the State's Attorney for the county in which said misde- 
meanor is committed, to bring suit against any public officer charged with 
the violation of the provisions of this act in any court having jurisdiction. 



PARLIAMENTARY LAW; 

OR, RULES OF ORDER FOR DELIBERATIVE ASSEMBLIES, ESPECIALLY USEFUL FOR 

TOWN MEETINGS AND BOARDS OF SUPERVISORS. 



Parliamentary Law consists of rules which are recognized as governing pro- 
ceedings in deliberative assemblies. It is so called from the rules of order exist- 
ing from long established usage in the Parliament of England. The Legislative 
Assemblies of the several States, and the legislative branch of the general govern- 
ment of the United States, being formed upon the principle of the English Par- 
liament, have adopted the like rules for their government, and by general custom 
in this country, these rules are recognized in all deliberative assemblies. Legis- 
lative assemblies, however, for the purpose of certainty, generally adopt by 
express vote, the rules of parliamentary law, as expounded by some particular 
writer on the subject, qualified as circumstances may demand, by various rules of 
their own. 

A deliberative assembly is a congregation or convention of persons for the con- 
sideration of matters in which all are concerned. 

Public Meetings. — In many of the States of the Union, counties arc divided into 
several districts called towns or townships, the inhabitants thereof becoming a 
body corporate. The law provides for stated meetings of the electors, called town 
meetings, for the consideration of town affairs. In the absence of any provision 
to the contrary, these assemblies conduct their proceedings according to the 
rules of parliamentary law.* 

Public meetings by voluntary assent are of daily occurrence. These meetings 
are sometimes convened at the instance of committees appointed for that pur- 
pose ; and are frequently convened at the request of citizens who desire such 
meeting, on public notice, either by hand-bill notices posted, or by notice in a 
newspaper. 

Organization of Public Meetings. — The first business at a public meeting is its. 
organization. This is effected by choosing a presiding officer to keep order, and. 
a secretary to record the proceedings of the meeting, after which it is competent 
for the meeting to choose such other officers as may be deemed necessary. In 
case the meeting is composed of a very large number of persons, the presiding 
officer is called president ; if not he is usually styled chairman of the meeting. 

When the people have assembled, and the hour of meeting arrives, the meet- 
ing should be called to order. In case the meeting has been convened at the 
instance of a committee, the chairman or person first named on the committee 
should call the meeting to order. In case it was convened at the instance of 
citizens, the first named on the list should assume this duty, otherwise, the- 



♦Boards of supervisors, as constituted by the laws of Illinois, are deliberative assemblies, and 
their proceedings are conducted according to general parliamentary rules. 



492 APPENDIX. 



proper person for this purpose, would be the mayor of the city, or principal 
public officer, or most prominent person present. 

The person calling the meeting to order should take such position in the room 
-as to command the attention of the audience, and announce as follows : " Gen- 
tlemen, the hour at which this meeting is to convene having arrived, it is pro- 
posed that we proceed to organize ; I therefore nominate Mr. A. B. as chairman." 
The nomination being seconded, he proceeds ; " Gentlemen, those who are in 
favor of such nomination, will say 'aye '; those opposed will say ' no'. The vote 
being taken, if carried in the affirmative, he will say, "It is carried," or "it is 
agreed to ; Mr. A. B. is chosen chairman of this meeting; will he please come 
forward and take the chair ?" 

If the meeting is deemed one of importance so that the position of chairman 
would be deemed one of considerable honor, it is customary for the presiding 
officer to return thanks to the meeting for the honor conferred ; this he will do 
on taking the chair. 

As every deliberative body should have a secretary, the chairman will say, 
" Gentlemen, the first business in order will be the election of a secretary." If 
no other person moves, the person who called the meeting to order should also 
nominate a secretary ; but any person present may make such nomination. 

The secretary being chosen, the further business will be directed by the meet- 
ing. If the meeting is called for some particular purpose, it is proper in selecting 
a chairman to choose some person best acquainted with the object of the meet- 
ing ; if this is the case, the chairman should proceed after the election of secre- 
tary, and state the object of the meeting. If not, he should say, " The chair is 
not fully advised as to the object of this meeting. It will be proper that the 
object of the meeting be stated by some person to whom it is best known." It 
will be generally understood who this person is, and a motion may be made call- 
ing on him for that purpose, or he may be called out by several voices. 

It will be proper for the meeting to choose one or more vice-presidents, and 
one or more assistant secretaries. This is done where the meeting is large — gen- 
erally as a means of manifesting the importance of the occasion. They will also 
choose such committees as may be deemed necessary. 

When an assembly is composed of delegates chosen by and representing 
others, the organization is, in the first instance, considered temporary, upon 
which measures are taken to ascertain who are members ; this is usually done 
by the appointment of a committee to examine the credentials of those claiming 
to be members, and to report accordingly. 

Until this is done there is a presumption that all present who assume to take 
part in the assembly, are entitled to do so, as it is supposed that no gentleman 
would be gnilty of imposition in this respect. At the time of appointing the 
•committee on credentials, it is customary also to appoint a committee to report 
the names of persons for permanent officers of the assembly or convention. 

After the report of the committee on credentials is adopted, the assembly, on 
motion of some member, proceeds to the election of permanent officers. If the 
Barnes of candidates have been recommended by a committee, the adoption of 
their report is regarded as making choice of the persons they have recommended. 
[n the case of an assembly composed of delegates, unless it is an important occa- 
sion, it is not customary for the temporary chairman to return thanks to the 
convention, or to allude to the object of the meeting; he simply acts as modera- 
tor for the time being, for the purpose of organization. 

It is proper that the permanent chairman, or president, on assuming his 
duties, shonld express his thanks for the honor conferred upon him, and state in 
general teims the object of convening the assembly. 

In case the assembly or convention of delegates is small, it is customary to 
consider the temporary organization as permanent from the beginning. 

When the organization of the meeting is completed by the election of officers, 
the chairman should announce, "The meeting is now fully organised, and ready 
to pF veed to business." If no motion is made or business presented, it is proper 



PARLIAMENTARY LAW 



for the chairman to say, " What is the pleasure of the meeting?" And at any- 
time when there is no business before the meeting, and there is no indication of 
presenting anj'thing, the chairman should announce, " Gentlemen, there is no 
question before the meeting ; what is your further pleasure ?" 

Manner of presenting business. — Every member of a deliberative body, in the 
absence of express rule to the contrary, has the right to present propositions for 
the action of the assembly. This is by a simple motion or by formal resolution. 
But where the object of the meeting is of a general nature, or where the subject 
does not seem to have been duly matured by any one present, it is customary to 
appoint a committee to prepare and report resolutions expressive of the sense of 
the meeting. When a member desires to present a proposition for the action of 
the assembly which is of importance, it should properly be reduced to writing; 
such propositions are called resolutions, and commence thus : " Resolved, That." 
But a matter of less importance may be by a mere motion, which need not be in 
writing unless for purpose of certainty in conveying the ideas of the mover. 

Motions, and manner of proceeding. — A motion is simply a proposition of a 
member, as his individual sentiments. If the proposition offered prevails, it is 
then adopted as the conclusion or sense of the assembly. 

But the proposition by a single member is not considered sufficient to claim 
attention from the assembly ; it is therefore required that it shall be approved or 
seconded by one other member. This being done, the mover is entitled to have 
it put to the assembly. In general practice, however, all motions are presumed 
to be seconded, unless the point is made and found to be otherwise ; in which 
case the presiding officer could not properly take notice of the motion. 

In general no proposition or question can be acted upon except on motion of 
a member. The manner of proceeding is for the member to rise in his place, 
and say, " Mr. Chairman." Before he can proceed it is exj^ected that he will 
have the permission, or as it is termed, " recognition of the chair." The chair- 
man therefore responds: " The gentleman from." naming the district from 
which he is a delegate, or, "the gentleman on my right," or similar designa- 
tions. The rule in deliberative assemblies being that no member shall be 
addressed or spoken of by his name where it can be avoided. The person offer- 
ing the motion, being recognized by the chair, proceeds, " I move, sir, that," 
stating his motion. The member desiring to second the motion should rise and 
say, " I second the motion." Before any remarks upon the motion or proposition- 
are in order, it must be stated by the chair. The chairman should say, " Gentle- 
men, it is moved that" (stating the substance of the motion). It is sometimes 
the practice for the chairman to say, " Gentlemen, you have heard the motion," 
and then proceed to put the question. But this is improper ; a motion is not the 
property of the assembly, or, in other words, not a subject before them, until it is 
stated by the chairman. 

When a motion is made and seconded, it becomes the property of the assem- 
bly, and cannot be withdrawn or modified by the mover except by leave of the 
assembly, on a motion made for that purpose. 

After the chairman has stated a motion, which he may do without rising, if 
no member interposes, he should proceed promptly to put the question to the 
assembly ; this he does by rising, when he will say, " Gentlemen, those in favor 
of the motion will say aye" — "those opposed will say no." If it is decided in the 
affirmative, he will say, " The motion has prevailed," or, "It is carried." If it is 
decided in the negative, he will say, "The motion is lost," or, "It is decided in 
the negative." 

After the vote has been declared by the presiding officer, it becomes final. 
Sometimes, when the vote is nearly equal, it is difficult to determine which hns 
prevailed. In such case the presiding officer should not hastily announce the 
vote. He should say, " The ayes seem to have it," or, "The noes seem to have it," 
as the vo*e may appear. If no member interposes, he may then proceed and 
declare the vote as it seems to him to be. 



494 APPENDIX. 



But if any member doubts the vote as the chairman states that it seems to be 
lie may rise and call for a division of the house. This may be done, as the call 
indicates, by dividing the members of the assembly — by having those who vote 
in the affirmative stand on one side of the room, and those in the negative stand 
'On the opposite side; or by the "up-lifted hand "—the latter is the most usual— 
•or simply by rising, In either case the chairman will direct the secretary to 
•count the votes on each side, and report to him the result. The most usual and 
satisfactory course is by rising. 

When a member calls for a division of the house, in the absence of any express 
rule made by the assembly on the subject, the presiding officer should proceed 
thus : " A division is called for ; all those in favor of the motion will rise in their 
place, and stand until counted." When those in the affirmative are counted, 
and the number is reported to the chairman, he will announce the number, and 
say, "All those opposed to the motion will in like manner rise and stand until 
counted," which being done, the chairman announces the number, and declares 
the motion carried or lost according to the fact. It is perhaps the duty of the 
chairman to count the vote, but it is competent for him to direct the secretary to 
'do so. 

In case any member desires it, he may, at any time before the vote is declared 
by the chairman, call for the appointment of tellers to count and report the result 
of the vote, instead of leaving it to the chairman. This is done by the chairman 
»on request of any member. It is customary to appoint one person from each 
side, or each party in the assembly. When a division is desired, it must be 
•called for before the result has been finally declared by the chairman. After he 
has declared the vote, it is 'final, and a division cannot be called for. 



Motions in General.— When a motion is made which the members are in- 
clined to meet by a direct vote, on the merits, it is put to the assembly, either at 
•once or after debate, and disposed of. But as propositions may strike different 
iminds in different forms, it often occurs that the assembly, on motion of some 
member, will dispose of the question in some other manner ; for this purpose 
there is a class of motions resorted to, called subsidiary motions, which may be 
entertained while the original or .principal motion is j:>ending, thus : 

1. The assembly may desire to suppress the proposition, either for a time or 
altogether. The proper subsidiary motions for this purpose are, the previous ques- 
tion and indefinite postponement. 

2. The assembly may 'be willing to consider the proposition, but not at that 
: lime. The usual motions in such case are, postponement to some future time, or to. 
die on the table. 

3. The form in which the proposition is submitted may be considered defective 
in some particular, a correction of which may require more deliberate consider- 
ation than the assembly can conveniently bestow upon it. In such case the 
proper motion is to refer the proposition to a committee. 

4. The proposition of itself may be satisfactory, if changed or qualified in some 
particular. In this case the proper motion is to amend. 

The previous question. — The practice under this motion has not been uniform. 
In legislative assemblies it is generally regulated by rules prescribed ; the usual 
course, however, in the absence of express rules, is this : When a member desires 
a vote to be taken on a proposition without further debate or delay, he moves 
the previous question, this being seconded, the presiding officer says, "The pre- 
vious question is moved. Shall the main question be now put ? Those in favor 
will say ' ave,'— those opposed will say ' no.' " If carried in the affirmative, he 
will say, "The main question is ordered." In this case the assembly must come 
to a direct vote on the -main question, without debate, and no motion can be en- 
tertained to dispose- of the question in any other manner ; the main question is the 



PARLIAMENTARY LAW 



495 



original proposition, with pending amendments if any, each of which is to be 
disposed of in its proper order.* 

Indefinite postponement. — This motion is decided without debate. If in the 
affirmative it removes the question from before the assembly as effectually as if 
it had never been pending. A motion to postpone to a day beyond the sitting of 
the assembly is of the same effect as indefinite postponement. 

Motion to postpone. — "When it is desired to consider a proposition at some future 
day, the proper motion is to postpone or lay on the table. In either case the subject 
may be taken up subsequently by a vote of the assembly. 

Motion to commit. — When it is desired to render a proposition mor° perfect be- 
fore consideration, it is usually done by referring it to a committee. If there is 
a standing committee on that subject, the motion should be to refer to that com- 
mittee. If not, then to a select committee. A motion to refer to a select com- 
mittee, and a standing committee, may be made and pending at the same time ; 
in which case, the latter motion takes precedence, and should be first put to the 
question. A part or the whole of a subject may be referred ; or portions may be 
referred to several different committees. 



Motions to Amend. — Amending a proposition is either by adding words, or 
taking words from it, or by transposition of words. This is accomplished under 
different modes of proceeding. Under this head may be classed the following : 

1. Filling blanks. — It often happens that propositions are introduced, leaving 
blanks to be filled by the assembly, either with times and numbers, or with pro- 
visions analogous to those of the proposition itself. In the latter case, blanks 
are filled in the same way that other amendments are made by the insertion of 
words. In the former, propositions to fill blanks are not considered as amend- 
ments to the question, but as original motions, to be made and decided before 
the principal question. 

In case of blanks to be filled with time and number, motions may be made for 
that purpose, and the question taken on each by itself. Several motions for this 
purpose may be made and pending, before any of them are put to the question. 
The usual rule is to take the question, first, on the highest number, the largest sum, 
and the longest time. 

2. Striking out. — If an amendment is proposed by striking out a paragraph or 
certain words, and it is rejected, it cannot be again moved to strike out the same 
words, nor a part of them; but it may be moved to strike out the same words 
with others, or to strike out a part of the same words with others, provided it 
becomes thereby a different proposition. 

3. Amendment by inserting. — If an amendment is proposed by inserting or 
adding a paragraph or words, and it is rejected, it cannot be again moved to 
insert the same words, or a part of them ; but it may be moved to insert the 
same with others, or a part of the same words with others, if the coherence 
really make them different propositions. 

4. Striking out and inserting. — This combination of propositions may be divided 
by a vote of the assembly. When the proposition is divided, the question is 
first to be taken on striking out ; if that prevails, then on inserting ; if the 
former is decided in the negative, the latter falls of course. 

* If the motion for the previous question is lost, or decided in the negative, the general rule is 
stated to be. that the main question is taken out of the assembly for the day, so that there is then 
nothing before it to postpone, commit or amend, dishing' s Manual, § 175. But in Illinois the 
^practice is that the main question is still oending as if no vote had been taken. 



496 



APPENDIX. 



5, Division of a proposition. — "Where a proposition is composed of two or more 
parts, which are susceptible of division into several questions, it is a compendious 
mode of amendment to divide the motion, if deemed advisable, into separate 
questions, to be separately voted upon. This may be done by order of the 
Assembly, on motion, as in other cases. 

The question as divided becomes a series of independent propositions. Assem- 
blies sometimes provide by express rule for the division of a question on demand 
of a member. 

6. Amendment to an amendment. — Custom or usage has established a rule 
whereby a proposition may be entertained to amend an amendment, but there 
can be no amendment of an amendment to an amendment. 



Of the Order and Succession »f Questions. — It is a general rule that where a 
proposition is pending before a deliberative assembly no other can be entertained 
until that is disposed of, unless it be either: first, a privileged question ; secondly , 
an incidental question ; or, Hardly a subsidiary question or motion. 

1. Privileged questions. — Questions of this nature are: 1. Motions to adjourn. 
2. Motions or questions relating to the rights and privileges of the assembly, or 
of its members individually. 3. Motions for the orders of the day. 

A motion to adjourn takes the place of all other questions whatever. It is not 
debatable, and ordinarily not susceptible of amendment. 

A motion to adjourn to a time fixed can be amended, by offering some other 
time, and is debatable. 

Questions of privilege come next in order, and take precedence of all other 
motions except that of adjournment. They are such as concern the rights and 
privileges of the assembly, or of its individual members. 

Orders of the day come thirdly in succession, under the head of privileged ques- 1 
tions. When the consideration of a subject has been assigned for a particular 
clay, by an order of the assembly, the matter so assigned is called the order of 
the day for that day. 

2. Incidental questions. — These are such as arise out of other questions, conse- 
quently are to be decided before those which give rise to them. Of this nature 
are : 1. Questions of order ; 2. Motions for the reading of papers, etc. ; 3. Leave 
to withdraw a motion ; 4. Suspension of a rule; 5. Amendment of an amendment. 

Questions of order are those questions raised by any member as to a breach of 
any rule occurring. It is the privilege of any member to raise questions of order 
in such cases. 

Beading of papers brought before a deliberative assembly may be called for by 
any member who desires the reading. 

Withdrawal of motions is allowed on the part of the mover, by leave of the 
assembly, which is to be obtained by a vote on motion as in other cases. 

Suspension of a rule of the assembly may be granted by a vote thereof. This is 
usually obtained at the instance of a member to consider a proposition which 
would otherwise not be in order. 

Amendment of an amendment is allowable, as we have already seen ; the amend- 
ment to the amendment must be first put. 

3. Subsidiary questions — These, as before remarked, are those which relate to a 
principal motion. Subsidiary motions in common use are : to lie on the table ; 
the previous question ; postponement, either indefinitely or to a day certain ;, 
commitment and amendment. 

To lie on the table, is a motion usually resorted to in common practice when the 
assembly desire to put a proposition aside without giving any expresison upon 
its merits. It is not debatable nor susceptible of amendment. It takes preced- 
ence of and supersedes all other subsidiary motions. If decided in the affirma- 



PARLIAMENTARY LAW. 497 



tive, all motions or propositions connected with the principal question, are 
removed with it from before the assembly, until taken up by a vote t^reof. 

The previous question stands in equal degree with all other subsidiary motions, 
except the motion to lie on the table. 

The motion to postpone is either indefinite, or to a time certain ; and in both theso 
forms, may be amended ;— in the former by fixing a time certain ; in the latter by 
substituting one time for another. The latter case is treated like filling blanks. 

A motion to commit, or recommit, may be amended by substitution of ono kind 
of committee for another, or by enlarging or diminishing the number of the 
committee as proposed, or by instructions to the committee. It stands in the 
same degree with the previous question and postponement — but it takes preced- 
ence of a motion to amend. 

A motion to amend stands in the same degree only with the previous question 
and indefinite postponement, and neither, if first moved, is superseded by 
the other. But it is liable to be superseded by a motion to postpone to a day cer- 
tain. It may also be superseded by a motion to commit. 

The following example is given to illustrate the successive order of questions : 
Suppose first sl principal question is proposed, second, a motion is made to amend 
the principal question, third, a motion to commit, fourth a question of order arises 
in the debate, which gives occasion to, fifth, a question of privilege, and sixth, 
a subsidiary motion, as to lie on the table. All these questions may be pending 
at the same time, and take rank in the order named. The regular course of 
proceeding requires tho motion to lie on the table to be first put. If this is 
negatived, the question of privilege is then settled ; after that comes the question 
of order, then the question of commitment ; if that is negatived, the question of 
amendment is taken ; and lastly, the main question. 

Of reconsideration. — A deliberative assembly may reconsider a vote already 
passed, whether affirmatively or negatively. For this purpose a motion is made, 
as in other' cases, that such a vote be reconsidered ; if it prevails, the matter 
stands before the assembly in precisely the same state and condition as if th°) 
vote reconsidered had never been passed. In the absence of any express ru>^ 
of the assembly, a motion to reconsider is made in the same manner as any 
other motion. 

Of committees. — The business of deliberative assemblies is facilitated by aid Oi 
committees; they are of three kinds, select committees, standing committees and com.' 
mitlee of the whole. 

Select committees are those appointed to consider a particular subject. 

Standing committees are those who are appointed to continue during the whole 
term of the assembly, to consider all matters of a certain character named during 
the time. 

A committee of the whole is a committee comprising all the members of the 
assembly to consider any subject referred to them. 

Select and standing committees, in the absence of any express rule or vote of 
the assembly, are appointed by the presiding officer. When a motion is made 
for theappointment of a committee, the motion usually includes the number of 
whichit is to consist. If no vote is taken as to the manner of appointment, the 
presiding officer should proceed to appoint. It will be unnecessary for him to 
inquire of the assembly as to how they will have the appointment made ; the 
fact that they have given no expression on the subject implies that the appoint- 
ment shall be made by the chair. 

The person first named on a committee is considered the chairman ; but in the 
absence of any rule to the contrary, the committee may make choice of some 
other person as chairman, if they desire to do so. 

When a committee have considered a proposition, they present the result to 
the assembly, which is called their report. It is usually in writing, and is 
announced to the assembly by the chairman, or some member of the committee 
selected for that purpose," #ho rising in his place, says, " Mr. President " [or Mr. 



498 APPENDIX. 



Chairman, as the case may be], "The committee to whom was referred the subject 
" of [stating the matter referred], have had the same under consideration, and have 
" instructed me to report that" {here follows the report]. 

After the report is made, the proper motion is, on the reception of the report ; 
but in practice the report is received without such motion, unless objection is 
made, in which case a formal vote is necessary. After the report is received, the 
committee are discharged without any action of the assembly. 

The report thereupon becomes the property of the assembly, and the question 
recurs on its adoption. The presiding officer will proceed and so state the ques- 
tion, without any formal motion being made. 

After a report is adopted, the recommendations of the committee become the 
sense of the assembly. 

Conclusion. — The foregoing is a brief summary of the general principles 01 
parliamentary law for the regulation of proceedings in deliberative assemblies. 
Limited space does not admit of an extended treatise on the subject ; but suf- 
ficient has doubtless been given for ordinary purposes. 

In conducting proceedings in deliberative assemblies, much depends upon the 
presiding officer. According to the popular idea of such a functionary, he 
becomes little more than a graven image, or fixed statue, when in fact he shouia 
be tho most active man in the assembly. He should have his attention in all 
directions as much as possible, at the same time, and be quick to recognize any 
member who rises and addresses him. As soon as a motion is offered he should 
proceed promptly, without hesitation or delay, and state it, in a full and clear 
voice. If no one rises to speak to it, he should proceed just as promptly to put 
the motion. It is no part of his duty to invite debate. 

An example of promptness and diligence on the part of the presiding officer 
gives spirit to the assembly, and business is conducted with more dispatch anc 4 
greater satisfaction. 



INDEX. 



Page. 
Accounts. 

Board of town auditors examine and au- 
dit, of town 99-100 

File with town clerk, when 100 

Clerk to read at next annual town meet- 
ing 100 

Auditor may require to be verified 100 

Form of account against town and affi- 
davit 100 

Certificate of audited, delivered to' town 

clerk 100 

Record of audited kept by clerk 102 

How audited and by whom paid 102 

Annual to board be made by highway 

_ commissioners 126 

i?'orm of annual to auditors 126 

Over&eers to render to commissioners of, 

etc 140 

Form of overseer's annual 140 

Of poor to keep accurate— file with county 

clerk, when 270 

Of county collector, manner of keeping.. 387 

Of county clerk, manner of keeping 387 

Account Book. 

Supervisor to keep 95 

Town to buy 95 

To be delivered to successor 96 

Form of supervisors' book 96 

Town clerk to keep of auditor's certifi- 
cates 102 

Highway treasurer to keep 126 

Adrertlsement. See Judgment. 

For judgment and sale oi land for taxes. 349 

When published— Requisites of 349 

When publisher unwilling to insert 350 

Figures may be used in 351 

When county collector advertise again... 351 
Printers, etc., to give collector copies of, 

etc ' . . 352 

When printer paid for 352 

Error in. printer to lose pay for. 353 

For animals taken up at large 472 

Affidavit. 
Affidavit of correctness of bill against 

town 100 

Form of overseer of highways upon re- 
turn of list to supervisors 140 

Form of non-residence or unknown 

owner 166 

Form of service of notice of appeal on 

three petitioners 182 

Form of service of notice of appeal upon 

commissioners, etc 182 

Made by two petitioners establishing 

drainage district ... 208 

Form of, by petitioners 208 

' Form oi to delinquent list 353 



Page. 
Affidavit. Continued. 

Form of by sheep owner showing dam- 
age 396 

Form of correctness of bill against county 454 
Agreement. 

Form of on division of town and disposi- 
tion of property . ... 44 

Damages opening road may be agreed 
upon. 160 

Form of by owner 160 

Form of for right of way and release of 
damages for drains 212 

Form of to divide and maintain division 
fence 240 

Auditor of Public Accounts. 

Election for or against township organi- 
zation certified to 34 

Receive abstract report of division of 
county into towns 37 

When names of towns are alike — proceed- 
ings by 37 

Keep record of names and boundaries of 
towns 37 

Fees in organization of insurance com- 
panies 280 

Furnish certificate to, when 280 

Lay schedule of. etc., railroad, etc., before 
board of equalization. 304 

Lay schedule of telegraph companies be- 
fore, etc 306 

. Notify county clerk of approval decision 
of county board 320 

When decision of not approved — notice 
to apply to supreme court, etc 320 

File in a statement of facts 321 

To transmit to auditor abstract of assess- 
ment 322 

Requisites of same 322 

Duty on failure of assessor to make re- 
turns 322 

Certify to county clerk assessment of cap- 
ital stock, etc 325 

Certify to county clerk aggregate capital 
stock of, etc 325 

Report to county clerk completion of 
equalization of assessments, etc 327 

With srovernor and treasurer to ascertain 
state tax 328 

Compute and certify to county clerk rate 
of taxes 328 

Give collector dupli cate certificate 375 

Authorized to purchase property for state, 
when 379 

When locality does not pay, duties of ... 381 

To sell property of state, when 382 

Obtain abtracts lands entered and located, 
etc 382 



500 



INDEX. 



Page. 
Auditor of Public Accounts. Con- 
tinued, 
Give instructions to clerks, etc., advise, 

etc ..382 

Publish revenue act. 388 

When elected— term 401 

Animals Running at Large. 

Electors at town meeting— power to regu- 
late 56 

Power to authorize the distraining and 

impounding of 57 

Sale of distrained or impounded— how 

conducted 57 

Redemption of— when allowed— costs 57 

Form of by laws concerning 59 

Form of notice by justice to owner of im- 
pounded animals — 60 

Form oi notice, when owner not known 60 
Form of docket entry, on complaint 

against owner 60 

Form of pound master's notice of sale. . . 61 
Estrays— when taken up— who may take 

up 107 

Not to be used, except milch animals — 108 
When several estrays taken up by same 

person 108 

Notice of— recording, etc 108 

Prohibited from running at large 469 

Justices jurisdiction over 469 

Vote for allowing— petition— notice 470 

Form of petition to vote on 470 

Form of notice of taking vote on 470 

Form of ballot for— voting 471 

Canvass of votes for— returns 471 

Effect of vote— in town when against — 4/1 
On petition townships may vote to allow 471 

Rights saved 472 

When vote to take effect 472 

Limitation of voting on question 472 

Unlawful for male animals to run 472 

Lawful to take up when 472 

Penalty— advertisement— redemption 472 

Owner deemed guilty of trespass— pen- 
alty 473 

Liable for damages by 473 

When deemed an estray 473 

Assessor. 

Duties of in disposition of property in di- 
vision of towns 44 

On annexation of towns . 45 

Duties in division of personal property 

when town altered or divided 46 

When to meet for purpose 46 

Meeting how called— notice to be given . . 46 
When to give notice of town meeting — 66 

One of judges of election in town 68 

Elected at annual town meeting 71 

Term of office 71 

To subscribe oath when elected 85 

On refusal to serve to forfeit 87 

When to be one of board of town auditors 99 
Fees and compensation allowed to — 105-318 
When may examine, and list property. . . 295 
Return schedule of capital stock of, etc., 

to county clerk 299 

Assessors and depnty how appointed 311 

Term of office— subject to penalties, etc.. 312 

Vacancy, how filled 312 

Appoint deputv, when 312 

Subscribe oath 312 

Failure to vacates office 312 

To view land and determine value 313 

Report improvements made, etc 313 

Report property discovered 313 

How assess personal pr> -perty 313 



PAGE- 

Assessor. Continued. 

When owner sick, leave schedule 314 

May examine person under oath when.. 314 

Designate school districts on assessment. 314 

When property in several districts .. 315 

When to fix value of personal property.. 315- 
To furnish owner statement of valuation 315 

Use forms of auditor, etc 315 

To add up column of books, etc 316. 

Return total of all books 317 

Return books verified, etc 317 

Form of affidavit to 317 

Return schedule and lists with 317 

Books filed with county clerk 31 7 

When to meet to review assessment 318* 

Report action in, etc 318 

Pay of assessors and deputy, how fixed.. 318 

To make detailed account of 318 

When not entitled to pay 319> 

May administer oath , when 385 

Assess bridge on state border 390 

Duty to collect statistics 393 

List dogs for taxation. 393- 

Assessment. See Damages — Tax — Assessor. 
In township insurance co. — how made... 279 

Review of by town boards 315 

Assessor to give notice of meeting to re- 
view 316 

Failure to give, not vitiate assessment 316 

Equalization of by county board. . . . .319-321 
County clerk to report assessment, etc . to 

auditor 322 

Requisites of report or abstract. 322 

Wnen not all returned, duty of county 

clerk in 322 

Failure to return — proceedings by county 

board 326 

Double assessment, taxes refunded on 380 

Failure to complete 384 

Special, when be returned 384 

Informality not to vitiate — 385 

Failure to deliver tax book not to vitiate. 385 
Of bridges on border of state 390> 

Assessment Books. 

County clerk to make up for towns 309 

How ruled, etc 309 

Requisites of in general 310 

Separate when may be used 310 

Statement of tax to be entered in 310 

How books made up in townships 311 

Separate lor taxes within city, when 311 

County clerk to compare, when 311 

To be ready by first of May 311 

Assessor to call for, when 311 

When other lands entered, list of fur- 
nished to 311 

Assistant Supervisor. 

Election of 71 

N< > pi Aver as town officers 97 

Members of county board 97 

Appeals. 

In road cases from assessment, opening 

road— proceedings 160 

On establishing private roads, etc 176 

Road appeals 180-W9 

Party may appeal from decision of com- 
missioners 180 

Notice to petitioners— requisite of. 180 

Present petition asking for 181 

Form of petition for from decision of 

commissioners 181 

Form of notice to commissioners of ap- 
peal 1^1 

Form of affidavit of service of notice — 182 



INDEX. 



501 



Page. 
Appeals. Continued. 
Form of service on three petitioners. . . . 182 

Three supervisors be summoned 183 

Trial of— power of supervisors 183 

Form of summons to three supervisors to 

hear 183 

Form of order supervisors fixing time and 

place of hearing 183 

Form order of supervisors, from decision 

in favor of road 183 

Form of order, etc., from decision refus- 
ing road 184 

Party appealing pay costs 185-186 

File bond with justice or clerk 1S6 

Form of bond on appeal from decision of 

commissioners 186 

Majority of supervisors may decide 187 

Road on county or town line— proceed- 
ings 187 

Form of petition for in case of town line 188 
Road laid out to be opened within five 

years 198 

In drainage, a-sessment for drains, ap- 
peal, how taken 218 

Form of appeal bond for 218 

From decision of supervisors, how taken 220 

Form of bond to county court 220 

Heard at any term provided, etc 221 

Not to delay collection of assessment — 221 
In counties not under township organiza- 
tion 229 

From orders in special drainage district.. 234 

Fees of board of appeals in drains 238 

Taxes appeal irom judgment for 356 

In contested election cases 429 

Decision county board on claims 454 

Form appeal bond to circuit court 455 

Application. 

Form to locate drain— when made 237 

Appraisers. 

Of damages to sheep 396 

Forms of estimate— oath 397 

Fees of. 398 

Attorney General. 

When elected— term 401 

Award. 
Form of freeholders on division of ex- 
penses and damages on roads 180 

55 allots. 
In vote on township organization — requi- 
sites 34 

In election uniting towns, form of— can- 
vass 48 

On change of meeting place— form of 68 

Boxes for, to be supplied by town 74 

'Canvass of when in several boxes 75 

"Where deposited when town is in limits 

of city 75 

Returned to town clerk with certificates. 75 
Form of on vote to buy implements, tools, 

etc 124 

Form ol on vote to borrow monev to 

build bridge . . . . 192 

Form of on vote for continuance of sup- 
port of poor 271 

-General election to be by 409 

Requisites of. 409 

Form of, at , 409 

Cumulative, form of 410 

Manner of receiving and depositing 410 

Canvass of— proceedings in 411 

Irregular not counted 411 

Be strung— when destroyed 41 

On contest, examination of. 412 

Form of return 412 



Page. 
Ballots. Continued. 
In election for transfer of territory, form 

of 440 

Form of on election for forming new 

county 442 

Form ol on election fixing county seat.. . 444 
Form of on election for voting additional 

tax 452 

For issuing bonds for, etc., form 453 

For vote allow animals to run, etc. 471 

Cast in separate box 471 

Ballot Boxes. 

Town to supply 74 

Where brought on closing of election 75 

County board to provide, when 406 

Judges of election to keep 406 

Before ballots cast to be open 409 

Bankers. 

Personal property of, where listed 291 

Rules for listing 296 

Banks. 
State and national, how assessed and 
taxed 299 

Benefits. 

Assessment of in road damages 167 

Assessment of in drainage matters 216 

Blanks. 
For election, county clerk supply 406 

Board of Appointment. 

Justices, supervisor and town clerk to 

constitute 88 

"Vacancies in office, how filled by . 88 

Vacancies in board, how tilled— exception 89 

Warrant to be filed in office of town clerk 90 

Fees allowed to 106 

Board of Equalization. 

Assess property of railroad on schedules 

returned 304 

To assess capital stock of telegraph com- 
panies 306 

State board, how composed 325 

Members, how and when elected 323 

Vacancy filled by governor 323 

Members take oath 323 

Select chairman at first meeting 324 

Secretary appointed— take oath 324 

Duties of 324 

When board to meet 324 

Proceedings in equalization of property. 324 

Rules for personal property 324 

To assess capital stock of corporations.etc. 325 

Assessments certified to by auditor 325 

Assess railroad property 325 

Power to examine persons and papers. . . 325 

Lands, how equalized 326 

Town and city lots, how equalized 326 

Results to be combined into one table 326 

May estimate valuation when no returns. 326 
Secretary to certiiy rates determined to 

auditor 327 

Proceedings of published 327 

Cost of, how paid 327* 

Fuel, printing, rooms, etc., for, how furn- 
ished 327 

Compensation of. 327 

May employ page, secretary, janitor, etc. 327 
Two-thirds of whole number quorum... 327 
Members of when elected 403 

Board of County Commissioners. 

Of Cook county, how elected 461 

Terms of office— qualifications 462 

Take oath— powers— duties 462 

Letting of contracts by restriction 462 



502 



INDEX. 



Page. 
Board of County Commissioners. 

Continued. 
Appropriations to be authorized by vote 

of, etc 463 

County clerk to be clerk of. 463 

Board of Health. 

Supervisor, assessor and town clerk to 

constitute 103 

Powers of— exception as town within in- 
corporated city 103 

Records of proceedings to be kept by town 

clerk 103 

Report of to annual meeting 103 

Compensation of members 104 

Expenses, etc., audited by town auditors. 104 
How paid 104 

Board of Supervisors. 

Make appropriation to destroy Canada 

thistles 112 

Annual meeting of, when 458 

Regular meeting of, when 458 

Special meeting of 459 

How organized 459 

Certificate of election examined 459 

Majority of, a quorum 460 

Majority to determine all questions 460 

Set with open doors 460 

Chairman to administer oath 460 

Power to appropriate money for roads, etc 460 

Change boundaries of towns 460 

Create new towns 460 

Naming of town by — proceedings 461 

Board of Town Auditors. 

Who shall constitute 99 

Absence of members — how supplied 99 

Meet semi-annually 99 

Examine accounts of officers 99 

Examine and audit claims against town . 100 
Examine and audit compensation of town 

officers 100 

Audited accounts filed with town clerk . . 100 

To be read at next town meeting 100 

May require accounts verified 100 

Form of bill against town and affidavit. . 100 
Certify to claim— certificate delivered to 

town clerk 101 

Aggregate amount certified to county 
cicrk to be raised for town purposes — 

exception 101 

Form of certificate of claims allowed — 101 

What deemed town charges. 101-102 

Form of certificate to county clerk of ac- 
counts audited 102 

Town clerk to be clerk of 102 

Record of proceedings by town clerk ... 102 
Accounts audited— by whom and how 

paid 102 

Audit expenses of board of health 104 

Appoint commissioner of Canada thistles 109 

To audit accounts of. 112 

Audit compensation of commissioners of 
highways 198 

Bond. 

Collector to give 86 

Supervisor to give to 92 

Form of supervisor's 92 

Form of approval by town clerk 92 

Form of certificate of acknowledgment.. 93 

When bond forfeited, town clerk to sue.. 92 
Treasurer of commissioners of highways 

to give 125 

Form of bond of. 125 

Form of bond for costs .....,., 149 



Page. 
Bond. Continued. 
Form of appeal on verdict assessing dam- 
ages 187 

Petitioners for drainage district to give.. 206- 

Form of bond by 207 

F< 'ini of appeal in drainage law 218 

Filed with town clerk 218- 

Of collector, delinquent assessments 227 

Form of bond by 227 

Overseer of poor to give 266* 

Contractor for support of poor to give 267 

Form of bond by 268' 

Secretary and treasurer of township in- 
surance co 277 

Accrued interest on taxable 292: 

Town and district collectors to give' 332 

Form of bond by 332" 

Appr< >ved by county board 332 

To be recorded — lien on property 333- 

County collector to give— form of 336 

Approved by county board, etc 337 

Lien against property 337 

Approval of otherwise and by auditor . . . 337 

Sureties on how discharged 338 

Suit on collector's, when brought 316 

Appealing from judgment for taxes 356- 

Requisites of 356 

Who not eligible as surety 377 

Liability on of collector's 377 

Form of bond by supervisor for dog li- 
cense fund 394- 

County clerk to give— form 465- 

Books. 

Of town and district collectors, delivery 

to, etc. 333- 

Of railroad property to county collector. . 334 
Warrants to be annexed to 334 

Bounty. 

On wolf scalp, how and when allowed. . . 464 

Bridges. See Roads and Bridges. 

Electors power to raise money for 54 

For roads and bridges in another town. . . 54 

When owner may connect fei.ee with 150 

Notice for fast driving on to be put up. . . 151 

Penalty for fast driving on 151 

On town and county lines, how built 189- 

Expense of maintaining, how borne 189 

Contract for— how entered into 189- 

Form of contract for 189 

Neglect of commissioners to care for 189 

Enforcement of contracts— suits for 190 

Form of notice to commissioners of ad- 
joining town 190< 

Judgment a town charge, exception, 

when 191 

County to aid in building 191. 

Petition for presented to county board.. . 19L 

Forms of petition to aid in building 191. 

Funds raised— by whom expended 19L 

Bridge requiring large sum— proceedings. 192 

Commissioners to petition for 192: 

Town clerk post notices for special town 

meeting 192 

Special meeting, how held 192 

Form of petition for special town meeting 

to borrow money 192: 

Bonds for, rate of interest, sell not less 

than par 192' 

Payment of town to provide for 192- 

Commissioners may contract to build or 

repair 194 

Form of notice of public letting 191 

Form of contract for building 194 

Notices, how posted 194 



INDEX. 



503 



Page. 
Bridges. Continued. 
Commissioners may make private con- 
tract 194 

Some not to exonerate from liability to 

repair 194 

For protection of drains— by whom made 225 

How paid for 225 

On state border— how assessed 390 

Broker. 

Personal property of, when listed 291 

Rules for listing of 296 

Pawn broker— rules for listing of. 297 

Burial Grounds. 

To belong to town where situated after 
division 47 

By Laws. See Rules— Penalties. 
Form concerning cattle running at large 59 

Electors of town, power to make 60 

Of Town clerk to publish 63 

When to take effect 63 

Clerk to record in record 98 

Township insurance co.'may alter and 

amend 277 

County board may make for jail, etc 450 

Canada Thistles. 

Electors, power to provide for destruc- 
tion of 56 

Commissioners of, how appointed 109 

Take oath — term of office — compensa- 
tion — removal 109 

Duties of commissioners . 109 

When thistles controlled and treated by 

commissioners — 109-110 

When owner of land not agreeable, com- 
missioners duties— proceedings 110 

Decision to be filed with town clerk 110 

Owner may appeal from decision — pro- 
ceedings 110 

Decision of commissioners affirming ac- 
tion—each tract declared nuisance — 110 
Treatment on such — tract— expenditure 

limited 110 

Form of appeal from decision of commis- 
sioners 110 

Duty of commissioners to prosecute Ill 

I! ep'ort annually to supervisor Ill 

Report filed with town clerk Ill 

Read at town meeting — requisites of Ill 

Form of report of commissioners Ill 

Form of decision of commissioners of 

highways on appeal Ill 

Accounts audited by town auditors il2 

Board of supervisors or county commis- 
sioners may assume control of. 112 

Appropriations from county treasury .... 112 

Penalties, by-laws or regulation for. ." 112 

Form of decision of commissioner cf Can- 
ada thistles , 112 

Capital Stock. 

Liable for taxxtion 283 

Shares of liable for taxes 283 

Of companies and associations, by whom 

valued for taxation 286 

Listed where principal office located 289 

When where business is transacted 289 

Corporations enumerated to list 298 

Of national and state banks how assessed 

and taxed 299 

Shares of national banks not held in state 

not required to list 300 

Telegraph companies scheduled, etc 305 

State board of equalization assess corpor- 
ations, etc 325 



Page. 
Carriage. 

Defined 118 

Cattle Guards. 

Railroads to maintain, when 253 

Causeway. 

Penalty for injuring, etc 148 

Cemetery. See Burial Grounds . 
Certificate of Election. 

Form of supervisors 85 

By county clerk to county officers 417 

Governor transmit to othcers elected, when 400 
Acknowledgment of official bond, form 

of certificate for 93 

Certificate. 
Town clerk to deliver to supervisor of 

votes to raise money 98 

Form of by town clerk of votes for rais- 
ing money, etc 98 

Form of by town clerk to copies of pa- 
pers and records . 98 

Town clerk to make of tax for town pur- 
poses 98 

Of auditors to accounts audited by 101 

Of town auditors to county clerk, when.. 101 

Record of made in auditors record 102 

Form of certificate to county clerk of ac- 
counts audited 103 

Form of town clerk's certificate to claims 

audited 103 

Form of, and application for, jury in road 

cases 163 

Form of commissioners, etc., where own- 
ers of land non-resident 165 

Form of town clerk to copy of road re- 
cord 175 

Form of to docket entry in drains 216 

Township insurance companies to have . . 280 
Of equalized rates of taxation in collect- 
or's book by county clerk 332 

To be attached to collector's bond of ap- 
proval 337 

Form of by county clerk to record of de- 
linquents 358 

Of purchase of delinqent lands assigna- 
ble 360 

Collector to file auditors to with county 

clerk 375 

Form of justice to estimate of, etc 398 

Of election of electors, by whom made . . 400 

Of election county clerk to make 417 

For wolf scalps, record kept of. 465 

City Council. 
Fix voting places— appoint judges of elec- 
tion 75 

May request territory in city organized 

as town 106 

Powers of towns when vested in city 

council 107 

May unite office of town and city clerk. . 107 
May continue office of highway commis- 
sioner 107 

Appoint poor master 107 

Regulate nubmer of justices— limit, etc. 107 

Vacancy in office filled by 107 

May appoint commissioner of Canada 

thistles 109 

City. 

Territory in, organized as town 106 

Population required for town 106 

City council to request such action 106 

Territory of city in county under town- 
ship organization, deemed a town 106 

Town officers of elected at annual char- 
ter election 106 



504 



INDEX. 



Page. 
City. Continued. 

General elections in, at same place as city- 
elections 107 

Judges and clerks of, how appointed 107 

Powers vested in towns exercised by city 
council 107 

Council of may unite office of town and 
city clerk 107 

Office of highway commissioner discon- 
tinued 107 

Office of supervisor and poor master sep- 
arated 107 

Poor master appointed by council 107 

Council may regulate number of justices 
and constables 107 

Number elected not to exceed limit al- 
luwed by law in other towns 107 

Vacancies in office filled by council 107 

Civil Engineer. 

Employed by drainage commissioners... 210 

Form of report by 210 

Compensation of 238 

Clerk: of Circuit Court. 

When elected 402 

Vacancy in, how filled 432 

Cleric of County Court. 

When elected 402 

Vacancy in. how filled.. 432 

Clerk of Supreme Court. 

When elected 401 

Vacancy in, how filled 432 

Clerk of Criminal Court. 

When elected . . 402 

Vacancy in, how filled 432 

Clerk of Drainage Commissioners. 

Town clerk to be 206 

Duties of, etc 206-228-229 

Duty to file petition, 207 

Give notice of filing to commissioners. . . 207 

Form oi notice to — 208 

Give public notice of meeting of com'rs. 207 

Form of notice 208 

Give notice of adjournment of com'rs.. . . 210 

Form of notice of. 210 

Assessment roll filed with 216 

Summon supervisor to hear appeal 219 

Form of summons 219 

Correct assessment roll 220 

Make and certify to treasurer copy of 222 

County clerk to, when 228 

Clerk of county board clerk 229 

Clerk of county court to be clerk 231 

Duties of. 231 

Give notice of meeting of commissioners 232 
Enter order organizing district in record. 232 
Give notice of election of commissioners 232 

Form of notice by 232 

Canvass votes— notify persons elected — 233 
Fees o f 238 

Clerks of Election. 

Town clerk oi at town meeting 74 

Election in towns, in incorporated city, 

how appointed — take oath .... 75 

Of election, how appointed 405 

Take oath — form of 405 

Of election — compensation 412 

Neglect of duty— Penalty 423 

Of election, enter names on register, etc. . 437 

Cockle-ourr Weeds. 

Commissioners of highways to cause to 
be destroyed 124 



Page. 
Collector. 

When to give notice of town meeting 66 

One of judges of election in town 68 

Elected at annual town meeting 71 

Term of office 71 

To give bond h6 

Failure to deemed a refusal to serve 86 

When to be one of board of town auditors 99 
Make abstract road tax due each district. 144 
Deliver abstracts to commissioners of 

highways 144 

To pay tax to treasurer of commissioners', 

when 202 

Town or district execute bond 332 

Form of bond for 332 

Subscribe oath— form of 333 

Bond and oath be recorded 333 

Bond lien on real estate of 333 

Call tor collection books, when 334 

Warrant for collection annexed to by 

county clerk. 334 

Authority in warrants specified 334 

Vacancy in office— appointment of 335 

Appointed to give bund, take oath, etc. . 335 
No resignation of accepted except, when 335 

Keep account of collections made 335 

May appoint deputies, when 339 

May require bonds of. 339 

Have like authority as 339 

Responsible for acts of deputy 339 

Bond of available to 339 

Warrant to be attached to list furnished to 339 

Duties in collection of taxes 340 

Levy distress for. when 341 

Give notice of— sale, how made by 342 

Removal of person— tax how collected by 342 

Fees for levying and selling. 342 

When receive tax on part of land 343 

Give receipt, etc., when tax paid 344 

Enter name of person paying tax 344 

Make settlements every thirty days 344 

Pay over town, road, school and other 

taxes when 344 

Make final settlement, when 345 

Receive duplicate receipts for, when. ... 345 

Return tax books, etc., when 345 

Failure to collect personal property tax- 
duties in 345 

Write opposite name, cause of failure to. 345 

Make oath of delinquency 345 

Credits allowed to, etc 346 

Form of return as to real estate 346 

Note personal property tax unable to col- 
lect, etc 346 

Failure to make settlement— suit on bond 346 
Final settlement— satisfaction piece given 347 
Piece recorded, operate as discharge of. . 347 

Exception as to suits, etc 347 

Who not eligible as surety on bond 377 

Failure to make settlement— suit 377 

Commissioners of Highways. 

Elected at first election— term „ . 38 

Form tor determination of term of office. 39 
Term of office, when elected in new town 43 
Hold over in contiguous towns united. . . 49 
Tax voted for bridge adjoining town, paid 

on joint order of. 54 

Election of at annual town meeting — 

term 73 

Subscribe oath when elected 85 

Refusal to serve, forfeit $25 87 

Town auditor to examine accounts of 100 

Appeal from commissioner of Canada 

thistles to no 

Form of decision imcase of appeal Ill 

Duties of commissioners 118-128 



INDEX. 



505 



Page. 

Commissioners of Highways, Con- 
tinued. 

Have care of roads and bridges 119 

Keep in repair— build bridges when nec- 
essary. 119 

Establish, widen, alter and vacate roads 

120-153 
Cause roads laid out, etc., ascertain and 

enter of record 121 

Keep highways and bridges over streams 

in repair 122 

Form of order ascertaining road imper- 
fectly described, etc 121 

Divide towns into road districts 123 

Form of order dividing town into road 

districts 123 

Assign inhabitants to work roads 123 

Require overseers to warn persons to work 123 
See that monuments, etc., be undisturbed 123 
Keep tools, implements, etc., of town — 123 
Purchase for use on highways necessary 

tools, etc 124 

When cost exceeds $100 submit to vote. .. 124 
Erect and keep in repair at crossings of 

roads guide boards, etc 123 

Prevent growth of thistles, weeds, cockle. 

ours, etc 124 

Sink and construct wells, with pumps, etc 124 

Construct water troughs 124 

Destroy cockle, burn weeds, or plants — 124 

Failure to perform duties— penalty 124 

Choose one of their number treasurer ... 125 
Treasurer to receive and have charge of 

moneys 125 

Treasurer to pay out on order of, only 125 

Treasurer, form of order of commission- 
ers on 125 

Treasurer, give bond,, form of. 125 

Treasurer, keep account in bouk of money 

received and paid . 126 

Report to town auditors— requisites of 126-127 
Form ot account of to town auditors.. .. 126 
Meeting of— when held— keep record of.. 127 
Ascertain highway labor ana road tax. . . 128 
Ascertain amount of tax for making and 

repairing roads— limit of. r>9 

Pay tax levied in city to treasurer of 129 

Affix to names on overseer's list number 

of days assessed 130 

Make list for each district— requisites of 

list ISO 

Lists to be deposited with town clerk 130 

Form of order assessing highway labor 

and tax 130 

Form of list of assessment of highway la- 
bor 130 

■Subscribe and deliver copy of lists to 

overseers 131 

.Form of list of personal property tax pay- 
ers 131 

Form of list of land road tax assessment. 131 
•Credit persons living on and working 

private roads 132 

Refusal or iteglect to perform duties- 
penalty 133 

Form of assessment of property tax by. . . 133 
• Sue for penalty for neglect of overseer to 

report. 142 

May contract for to construct roads and 

bridges, etc 142 

May contract to amount of $25 privately. 143 

May remove obstruction in road 147 

Form of notice by to remove obstruction 147 
Commence suit for penalties under road 

law 148 

■Give approval to making farm crossing . . 149 



Page. 

Commissioners of Highways. Con- 
tinued. 
Consent to connecting fence with bridge 150 
Put up notice against fast driving on 

bridge ■ 151 

Form of petitions for altering, widening, 

etc , road 153-154 

Requisites of petition 153 

Fix time of meeting to hear — 154 

Form notice for time and place to hear. . 156 
Mav adjourn meeting— give public notice 

of 157 

Form of notice of adjournment of road 

meeting 157 

Endorse memorandum of decision on pe- 
tition 157 

File refu-al to grant petition with town 

clerk 157 

Vacation of road— order with petition 

filed with town clerk 158 

Form of order of commissioners vacating 

road 158 

Cause survey of road 158 

When make change in road 159 

Ascertain damages before opening road.. 160 
Make certificate and present to justice to 

summon jury 161-162 

Form of certificate on appplication to jury 163 

Notify owners of lands if known. 164 

Form of notice to of application to jury. 164 

Hold meeting to finally determine 168 

Form of notice of meeting 169 

When may revoke proceedings 169 

May revoke proceedings 169 

Form of order revoking 169 

Cause order, report, etc., to be filed with 

town clerk 170 

Form of order by laying out road, etc., 

damages assessed 170 

Form of adjournment if so, inserted in 

order 171 

Form of proceedings on road petition 173 

Form of order, etc.— when damages re- 
leased 174 

Returned as other orders 174 

Contracts of inducement may be enforced 

by 175 

May lay out roads for private and public 

use on petition .' 176 

Form of petition for 176 

Proceedings conducted as in other cases. 176 

Jury to a-sess damages. 176 

Designate time to remove crops from 178 

Pay persons for work on private road- 
limit of 178 

Meet when county and town line roads 

laid out 178 

Proceedings— majority must concur in 

acts 178 

To allot to each town part to open and re- 
pair 179 

Divide expenses and damages when they 

can agree 179 

When to refer to freeholders 179 

Form of order establishing, etc., road on 

county or town lines 179 

Where they disagree as to town or county 

line road— proceedings 187 

May enter into contract to build bridge 
with commissioners of town adjoining. 189 

Contracts made by— how enforced 189 

Form of contract between of adjoining 

town 189 

How contracts enforced by 190 

Form of notice to of adjoining towns to 
join in performance of contract . ... 190 



506 



INDEX. 



Page. 
Commissioners of Highways. Con- 
tinued. 
Judgment against, a town charge— when 

not 191 

To present petition to county board to aid 

in building bridge 191 

Form of petition by 191 

Expend funds raised by county 191 

Petition supervisor to call special meeting 

to build bridge 192 

Form of petition by to call meeting to 

vote to borrow monoy 192 

Duty when petitioned to employ surveyor 

to survey roads, etc 194 

Form of petition for resurvey of road 191 

To file plats for record in town clerk's 

office 194 

Authorized to contract for building of 

bridges . . ". 194 

Contracts, how let— form of notice of let- 
ting 194 

May contract to amount of $25 privately, 

when 194 

Contract not to exonerate them 194 

To give notice to remove fences to owner, 

when 195 

Form of contract for building bridge 195 

Form of notice for removal of fences by. 196 

Compensation of 197-198 

Annually ascertain amount ot tax to be 

raised for, etc 198 

Form of tax levy for bridge and other 

purposes 199 

When larger amount required posting of 

notices by, etc 199 

Form of statement of tax levy by 200 

Form of notice by for voting larger tax 

for highway purposes 201 

Furnish list ot tax payers to clerk of 

county court, when 202 

Form of list of .tax payers , — 202 

Dutv to record plat of road, street, etc., to 

be recorded : 203 

Penalty for neglect 203 

When to be drainage commissioners 206 

To notify railroad co. to make crossings.. 258 

Form of notice by 258 

* 

Compensation. See Fees. 

Of town officers 104-105 

Town clerk and supervisor 105 

Assessor— pound master 105 

Board of appointment 106 

None for administering official oath 106 

Overseer— how allowed 142, 

Commissioners of highways 197-1 98 

Drainage commissioners 238 

Treasurer and clerk of. 238 

Member state board equalization 327 

Secretary, janitor and page of 327 

Presidential electors 400 

Constables at election 407 

Judges and clerks of 412 

Board of registry 437 

Of county officers, when and by who fixed 455 

Commissioners. 

To divide county — by whom appointed.. 35 

Pay for services. 35 

To make written report of proceedings . . 36 

To present same to county clerk, when. . . 36 

Form of report to county board 36 

Abstract of to be sent to auditor by coun- 
ty clerk ... 37 

' To'be recorded in a book for that purpose 

by county clerk , , , . , . §7 



Page*. 
Constables. 

In towns organized under township act to 

holdover 3g. 

When others to be elected 38 

Term of office when elected from new 

town created 43. 

Form of order for special election for 90" 

Form of notice of special election for 9Q> 

Council in town, in city, regulate number 107 
Serve notice on owner of land when dam- 
ages assessed 166- 

Form of return on by 166 ■• 

Keep order at elections, when— powers 406-407 
Special constables at elections— compen- 
setion , 407: 

Contest. See Elections. 
Of elections— proceedings. 425-429 

Conveyances. 

By town— form of deed for 45 

Effect of made for benefit of town 63- 

Form of deed for by town 63. 

By town how made. 63) 

Contracts. 

Towns, power to make 52 

When highway commissioners mav make 143- 

Com'rs make private to amount $25 143 

Form of notice of letting road 143- 

Form of with commissioners 143 

Form of offering inducements to establish 

road 175. 

For bridges when commissioners of ad- 
joining towns to make ; 189 

Form of for building bridge 189 

How enforced 19Q. 

Form of notice by commissioners to join 

in performing 190 > 

Judgment on, a town charge 191 

When commissioners personally liable on 191 
Com'rs of town may, for bridges, etc. ... 294. 
Form of notice of public letting for bridge 194 

195. 
223- 
223. 
223- 
267 
267 
267- 
267 



Form of for building bridge 

Construction of drains, how let 

Form of notice of letting for drains . . 

When cost $500 how let 

Overseers may let support of poor by 

Form of for support of 

Approval of by town auditors 

Contractor to give bond 

Form of bond by 268 

Bight of county to make 448 

Right of county to sue on 453 

County. See Counties. 
When may vote for or against township 

organization 33. 

Majority voters of— defined 35' 

To be divided into towns — when— by 

whom 35< 

Pay commissioners \i ho divide county. . . 35> 
Divisions to conform to government sur- 
vey : 35- 

County board of power to change name 

of town 36. 

When part of county not organized 39' 

When to bear expense of bridge on coun- 
ty line 189< 

When to aid in building bridge 191 

Fund raised in controlled by commission- 
ers 191 

When to support poor 264 

Revenue of what kind of money 340 

Removal from, how tax collected 343 

Not under organization, a collection for, 

etc 335. 

Who to be collector of 336, 



INDEX. 



50T 



Page. 
County. Continued. 
Superintendent of schools when elected. 403 

Commissioners, when elected 403 

Officers of, vacancies how filled 432 

Counties. 

Boundaries of 439 

Jurisdiction over rivers 439 

Jurisdiction over Lake Michigan 439 

Alteration of 439-441 

Transfer of territory— petition, etc 439 

County board to order election for trans- 
fer 440 

Notices— requisites of— how posted 440 

Form of ballot— effect of vote 440 

Restriction as to size 440 

Debts, how adjusted 440 

When territory released 441 

When election at discretion county board 441 
New counties, how formed— petition — 

election 441 

County clerk certify result to, etc 442 

What officers of to be elected at 442 

Justices to continue in office 442 

Canvass of votes, how made 443 

Oath be administered to officers by, etc... 443 

For judicial- purposes, how deemed 443 

Terms of court, when held 443 

Transfer of suits — lien of j udgment 443 

Adjustment of property and debts. 413 

Record of. etc., copied, when 444 

Commissioner for, by whom appointed. .. 444 

Duty of commissioner 444 

Copies ot records evidence 444 

County seat — how fixed 444 

When county board order election to fix. 445 

Body politic — power to sue, etc 446 

Powers of exercised by county board — 447 

Powers of enumerated . . — 44h 

Powers of county boards of. 448-450 

Duties of county board of. 450 

Raising additional tax — duties of in 452 

Bond, when may be issued 452 

Deeds to continued 453 

Contracts — rights of county — suits 453 

Where suits against brought 453 

Jurors and witnesses, inhabitants of com- 
petent 454 

County board of to prosecute and defend 

suits 454 

Judgment against how paid 454 

Claims against be audited 454 

Affidavit of correctness— form of 454 

Appeal from decision of board — form of 

bond 454-455 

Summons county clerk to make trans- 
cript, etc 455 

When compensation officers fixed by 

board 455 

Funds of, when kept separate 456 

Bond, when issued 456 

Classification of, 463 

County Agent. 

How appointed 270 

Keep account of relief furnished 270 

Not receive poor of town, when 272 

Make complete reports, when, etc 273 

County Board. See Board of County Com- 
missioners. 
On petition to submit question of town- 
ship organization 34 

Appoint commissioners to divide county. 35 

Power to change name of town — 36 

Adopt different name for town 37 

Designate place of first town election .... 37 
Appoint three judges of election 37 



Page, 
County Board. Continued. 
Order election on refusal to organize or 

neglect to elect officers 39' 

On continued refusal to appoint officers. . 39 

Term of such officers 39 

May annex town to adjoining town 39 

Submit question of continuance of town- 
ship organization 40- 

Power to alter town boundaries — change 
lines, divide and enlarge towns— create 

new towns 41 

Give notice of by posting— by publishing, 

when and how long 42 

Disputes of towns submitted to on divi- 
sion etc., of property 47 

Power to unite contiguous towns— excep- 
tions 47-48 

Cause submission to voters 48 

Canvass votes at such election.. 48- 

If majority adopt, to name town and de- 
fine boundaries. 4& 

Ascertain amount of money to be raised 

in towns, in cities, for expenses 62" 

When to appoint fence viewers 239' 

Power of when poor are supported by the 

town 269-270 

Purchase property to build poor house. . . 267 

Receive gifts, etc.. for support of. 269 

Make rules for— appoint keeper — physi- 
cian 270- 

Appoint agent to have charge of 270 1 

Make appropriations for support, etc 270 

Sell poor farm, etc 270- 

Establish county poor house 272 

Fix rate per day town shall pay for 272 

Each town may have poor supported in. . 272 
Agent not to receive when town fails to 

pay 273 

Provide for tuition of children of, etc.. .. 273 

Equalization of assessments by 319 

Meeting for when held 319 

To assess lands listed and not assessed . . . 320 

Review assessment on complaint 320 

Hear claim of exempt property 320 

Proceedings in — hearing, etc 320-321 

Appeals from decision of, how taken 321 

Ascertain valuations of towns to each 

other 321 

Powers in same 321 

May consider lands, etc., separately 321 

May set aside whole assessment, when. .. 321 

Order new assessment 321 

To ascertain taxes for county 329 

May institute suit for taxes on forfeited 

property 369 

Settle with county collector, when 371 

Fix time of making over destroyed 

records 381 

May select persons to do 381 

Direct county clerk to procure books, etc. 386 

Appoint judges of election, when 404 

Change election precincts, w r hen 405 

Provide ballot boxes 406 

Appoint constables to keep order at elec- 
tion 406 

Submit question of formation of new 

cctunty 441 

Adjust debts of 443 

When may appoint record commissioner. 444 

Provide books for 444 

Duties of. 444 

Powers and duties of 448 

Care and custody of property of county.. 449 

Of funds and business 449 

Examine and settle accounts, etc 449 

Erect work-house, jail, etc 450 



508 



INDEX. 



Page, 
County Board. Continued. 

Erect and maintain insane asylum 450 

Annually levy taxes for county purposes. 450 

Authorize vacation town plat, when 450 

Change name of plat, etc 450 

Cause removal obstruction for water 

courses 450 

Duties of county board 450 

Erect and maintain court house, jail, etc. 450 

Provide court rooms 450 

Provide rooms for clerk, treasurer, sher- 
iff, etc 450 

Provide safes, etc., for clerk, etc — 451 

Provide books and stationery, etc 451 

Publish statement of proceedings, etc — 451 
Make statement of receipts and expendi- 
tures 451 

Enter order for raising additional tax — 452 

Submit question of to people at, etc 452 

Caused levied if carried 452 

Submit question of issuing bonds. 452 

Prosecute and defend suits 454 

•Judgment against county, to draw order 

for 454 

Audit claims against county— affidavit to 454 

Decision of— appeal, 454 

"When to fix compensation county officers 455 
"When necessary to issue bonds— proceed- 
ings 456 

Neglect to perform duty— penalty 457 

Members commissioned by governor 457 

Take oath — form of. 457 

Regular meetings, when held 457 

Special, when may be held 457 

Chairman of, how elected 458 

Majority of a quorum 458 

Successor to county court in counties, etc 458 

Supervision of highways in, etc 458 

Chairman may administer oath 458 

May allow bounty on wolf scalps 464 

Enter of record order allowing 464 

Record to be'kept of certificates issued. . . 465 
County Clerk. 

Enter abstract of returns of election for 

township organization 34 

Eecord same upon records of county 34 

Certify same to auditor of public accounts 34 
Report of commissioners to divide town, 

presented to 36 

Return to auditor abstract of report of 

dividing county 36 

Record report of said commissioners 37 

Inform auditor of naming of town by 

county board 37 

Make notices of holding first town elec- 
tion—requisites of 37 

Give notice of election for division of in- 
corporated town 42 

Duty to post notices of place to hold elec- 
tions in, etc 75 

^ List of town officers elected file with 79 

Plat of road districts certified to 144 

Designate on tax books road tax to proper 

districts 144 

•Certify tax levied to treasurer of commis- 
sioners 201 

Form of certificate by of amount of tax.. 201 

To extend on tax books, how 201 

In case of non-resident paupers to notify, 

etc 265 

Procure books to enter railroad property 305 
Attach warrants and deliver to collector 

to collect tax 805 

Have contents of tracts of land surveyed. 309 
Make statement of rate per cent, of tax, 
etc 310 



Page. 
County Clerk.. Continued. 
Notify owner of exempt property of ap- 
plication, etc. 320 

To transmit abstract of assessment to au- 
ditor, when 322 

Furnish statement of railroad property to 322 

Transmit returns of assessments, etc 322 

Distribute assessment of railroad track, 

etc 325 

Distribute assessment of capital stock, etc.. 326 

Extend taxes against such values 326 

Make lists for collectors of taxable prop- 
erty 330 

Bo^ks made for correspond with town- 
ships 330 

Ex.end on assessor's books rates, etc 330 

Rates, how extended by 330 

Extend rates for cities, etc 331 

Extend all taxes levied, etc 331 

District, village, city tax, etc., how ex- 
tended by 331 

On forfeited property to add back tax, etc 331 
Make and record statement of taxes, etc. 831 

Forward copy to auditor 331 

Deliver to collectors books, when .... 334 

Deliver to county collector railroad book 

for, etc 334 

Annex warrants to such 334 

Make certified statement of collectors, etc. 

to county collector 385 

Mail bond of county collector to auditor. 337 

Attach certificate of approval of, etc 337 

Take charge of collectors' books on death 

of 338 

Appoint examiner of 338 

Assist county collector to make sale of 

delinquent lands 357 

Make certificate to record of, etc 358 

Note of payment of taxes since judgment 358 

Attend sales of real estate for taxes 358 

Enter tract sold on record 358 

Failure to attend sale penalty 360 

Deliver purchaser certificate', when 360 

Make index to sale records . . 361 

Send certified copy of sale lists to auditor 361 

Failure to— penalty 361 

Record of in tax sales evidence 363 

Erroneous sale, to correct 363 

When to deliver tax deed to purchaser. . . 866 

May incl ude several tracts in, when 366 

Deed by, requisites of 366 

Form of tax deed by 366 

Record evidence upon which issued..... 367 

Keep record of forfeited property 368 

Make entry of redemption 369 

Report to audit money collected on 369 

Certify credit of collector to auditor, when 371 
Certify to authorities valuation of prop- 
erty, etc 371 

Notify auditor of settlement of collector. 372 
Make statement, etc.. to collector, when. 373 

Furnish duplicate of to auditor 374 

Make of taxes paid, etc., twice, etc 380 

Add uncollected personal tax to, etc 384 

Delivering books before collectors bond 

filed— penalty 385 

Keep an account with collector 387 

Provide forms for statistics 392 

To revise and correct statistical returns. . . 393 

Transmit returns to auditor 393 

To charge license fee on collectors book, 

etc 394 

Make abstract of votes for elections, when 399 

When elected ... 402 

Notice appointment of judges of election 
to, etc 405 



INDEX. 



509' 



Page. 
County Clerk.. Continued. 

Provide for election, blanks 406 

Give notice of election— from by 407 

Canvass votes of election 416 

Make certificate of election 417^418 

Make certificate of compensation of 

judges, etc 418 

Send abstracts of vote 41k 

To secretary of state 418 

Neglect to perform duties by election law 

—penalty 424 

Fraud by in canvassing votes— penalty. . . 424 
Certity result of election in formation ot 

new county 442 

Canvass returns of election 443 

Give notice of election for additional tax 452 
Make transcript of decision of board, etc 455 
Clerk of county commissioners in Cook co. 462 

Take oath— form of 465 

Give bond— form 465 

Commissioned by the governor 466 

Have seal— appoint deputies 466 

Principal clerk responsible for act depu- 
ties 466 

When vacancy, clerk pro tern 466 

Custody of record books, etc 466 

Act as clerk of county board 467 

Keep record of claim audited, etc 497 

Keep record of orders issued 467 

Present order to treasurer to sign 467 

Keep index to records 467 

Give copy of, when 467 

Cause notice to vote on animals running 

at large 470 

Form of notice given by 470 

County Collector. 

Transfer delinquencies to tax books 226 

Deposit assessment books with county 

clerk 330 

Books tor collecting railroad tax deliv- 
ered to 334 

Who to be in counties 336 

Give bond— form of. 336 

Subscribe oath — form of 337 

Bond approved by county board 337 

How else approved 337 

Bond of filed in auditor's office 337 

Receive no tax books until, etc 337 

Sureties on bond, how discharged 338 

Failure to give additional security .. .. 338 
Default of— sureties may attach goods, etc 338 
On death who to take charge of books.. . 338 

Examination of books on death 338 

When same may be used to collect, etc.. 338 

M ay appoint deputies 339 

Responsible for acts of. 339 

Bond of available to 339 

Warrant to be attached to list furnished to 339 
Duty to levy and collect unpaid tax, etc., 

when 343 

Receive tax on part of land, when 343 

Give receipt when tax paid 344 

Enter name of person paying tax 344 

Credits'allowed to 346 

Give satisfaction piece to district or town 

collector 347 

Collect special assessments, when 347 

On return of delinquent transfer to tax 

book 347 

Cause demand for— give notice to owner, 

etc 348 

Make out receipt, when— form of. 348 

PoAvers as town collector 348 

When may collect in place of town or 

district 348 

Powers of in such cases 349 



Page. 
County Collector. Continued. 
Publish notice of application for judgment 349 

Advertisement— when published 349 

Advertisement to contain taxes due on, 

etc 349 

Give notice of application for judgment. 349 
When publisher unable to publish to se- 
lect another. .... 350 

Proceedings to charge real estate for per- 
sonal tax 351 

May publish omitted list, when 351 

Failure of. etc., not allowed as objection 

to collection, etc 352- 

Deliver copy of paper, etc., to auditor 352 

Make out delinquent book 353 

Requisites of^ 353 

Report payments of tax after filing of, etc. 353 
Form of affidavit to delinquent list.. . 353- 

Make sale of delinquent lands 357 

Report list of taxes paid since judgment. 358 
Attend sale of land in person or deputy.. 359 

Failure t- > attend sale—penalty 360 

Authorized to sell forfeited property, etc. 369 
Make statement of unpaid tax to county 

clerk 370* 

Entitled to credit on forfeited lands 371 

Make settlement with county board 371 

When to account with county clerk 371 

Credits on final settlement 371 

Final orders and corrections, etc 372 

Partial settlement of, when made 372 

Pay state taxes to treasurer 372 

Effect of lailure to obtain judgment 372 

Pay to local authorities amount of tax, 

etc 37£ 

Failure to pay over— office deemed vacant 373- 
Final settlement of for state taxes, when. 373 

Over payments refunded 374 

Failure of to pay over money due state . . 374_ 
File auditors certificate with county clerk 375 
Who not eligible as surety on bonds of. . . 37/ 
When books destroyed, assessment, how 

made 381 

Neglect to obtain judgment— penalty ... 385- 
Keep county funds— manner of. ...."..... 387 

County Commissioners. 

When township organization ceases— elec- 
tion of 40 

Number— term— how determined 40- 

When to assume duties— rights and liabil- 
ities of 41 

Power to close unfinished business of 

towns 41 

Sell property of town— pay indebtedness, 

etc 41 

May appoint commissioner of Canada 

thistles no- 

To audit accounts of commissioner 112 

Make appropriations from treasury to aid, 

etc 112 

County Seat. 

In new county, how fixed— election 444 

When another election called to 445. 

Corporations. 

Defined 268 

Listing of capital stock, etc.— rules 297 

State board of equalization to assess 325 

Costs. 
When may be recovered against town ... 65 

Form of bond for 149- 

In appeal from award of the highway 

commissioners i§4 

Form of bond to secure in establishing 

drainage district 207 

In drainage appeals to whom adjudged.. 221 



mo 



INDEX. 



Page. 
Credits. 

Pules for listing 295 

Crops. 

Owner have time to remove when pri- 
vate road opened over 178 

On farm where listed for taxation 290 \ 

^Crossing. 

When owner of land on both sides of 

highway may make 149 : 

Width of bridge 149 

When made on any water— cost of how 

fixed 149 

Form of consent of by com'rs of high- 
ways to construct bridge over 149 

Railroad to erect warning board at 257 

' What designated on board 257 

Railroad to ring and whistle at..... ........... 257 

Railroad to maintain 258 ] 

Neglect of to construct, notice to 258 j 

Form or notice to railroad agent to repair 238 

Authorities to construct, when 259 

Company liable for expenses 259 

Penalty, how recovered 259 

Railroad not to obstruct crossing except.. 259 

To place flagman at, when 259 

Refusal or neglect of railroad— penalty . . 259 

Right to erect house for flagman 260 

Provision not apply street horse cars .260 

■ Ciilvert. See Drains. 

Penalty for injuring, etc 448 

, Damages. 

Roads— ascertained before road ordered 

opened, etc ,,..., 160 

May be agreed upon. .,,..,.., , , 160 

Form of agreement in laying out road. . . 160 

May be released— effect of 160 

Form of release of by owner of land 161 

When not agreed or released— proceed- I 

ings .161,162-163 

Form of certificate and application for a 

jury 163 

Form of notice to land owners, for, jury to 

assess 164 

Form of venire for jury to assess.......... 164 

■ Owners to have notice 164 

Land owners to be notified of assessment 165 
Form of notice to land owners to prove 

damages 165 

Release and agreement of filed with town 

clerk 169 

Form of order revoking proceedings in 

assessing , 169 

Form of order laying out, altering or 

widening road — damages assessed .... 178 
Form order, etc., when damages released 

or agreed on , 174 

Filed with town clerk 174 

'.Drains— When released by owner to drain- 
age commissioners. 212 

Form of agreement for right of .way 212 

When to assessed by jury . , " . ... 213 

When exceed $200 trial in county court.. 214 

Trial— verdict— transcript , 214 

Form of verdict in 215 

Form of docket entry in 215- 

Assessment of for drains . , 218 

Paid or tendered before entering on land 224 

; Sheep— To how paid, etc , » 393 

How ascertained , ...... 396 

Form of oath of appraisers 397 

Form of estimate appraisers 397 

i Debts. See Credits. 

Owing by a town sub-divided ,or alterqd, 
apportionment -of. .,......,.,.......,,. . AT 



Page 
Debts. Continued. 

What may be deducted 295 

Not deducted 295 

Deduction verified by oath 296 

On organizing new county, how adjusted 443 

Definitions. 

What are deemed public roads 113 

Corporation defined 260 

Words and phrases in revenue law 388 

Of word dog 398 

Delinquent. List. 

Drainage treasurer to return to county 

collector. .226 

Form of list 226 

Return of as to personal property 345 

Return of as to real property 346 

Delinquent Tax. 

Levy of for roads— how and when made. 142 

Who paid over to 142 

Drainage treasurer may receive before 

sale ' 227 

Form of receipt for i 227 

Paid to drainage treasurer 227 

Collector of to give bonds for. 227 

Form of bond of collector of 227 

Returned by collector 345-346 

Delinquent defined 347 

Collected by county collector 348 

Notice of application for judgment 349 

Application for j udgment on 351 

May be paid county collector before sale. 353 

Court pronounce judgment for 354 

Sale ot lands for 357 

Deputy Collector. 

Collectors may appoint 339 

Responsible to collector 339 

Bond of available to collector 339 

Warrants attached to list furnished 339 

Ditch. See Drains. 
When highway commissioners may open. 

etc * 151 

When owner does not consent— proceed- 
ings 152 

When old ditch may be used 217 

Docket Entry. See Entry. 
Form of in case of impounded animals. . 60 

Form of in suit for road labor 138 

Form of in assessment of road damages. . 168 
Form of assessment of damages for drain 215 

Form of certificate to 216 

Dogs. 

Listed for taxation. 393 

License fee — how collected 394 

To whom fee paid 394 

Who to have custody of fund 394 

Damages to sheep owners paid from 395 

Payment not to bar action by 396 

Owner to make affidavit of 'loss 396 

Form of affidavit 396 

Damages, how ascertained 396 

Form of estimate of appraisers : 397 

Summons for — form of 397-398 

Form of oath of appraisers 397 

Fees in proceedings of, etc 398 

Meaning of word " dog " 398 

Drains and Ditches. 
Commissioners of highways to be drainage 

commissioners 206 

Drainage district, how organized 206 

Petition— requisites— bond . 206 

Commissioners of to meet, etc 211 

Petition filed in clerk's office 207 

.Form of notice of filing petition 208 



INDEX. 



511 



Page. 
^Drains and Ditches. Continued. 

Clerk give notice of meeting of commis- 
sioners 207 

Form of public notice of meeting to con- 
sider petition 208 

Affidavit by two petitioners 208 

Drainage commissioners administer oaths 209 

Make written statement of finding 209 

Petition for, when dismissed 209 

Costs— how appointment on dismissal 209 

Eight of way— damages 212 

Damages, how assessed for 213 

Trial— verdict— judgment 214 

Assessment for damages and benefits 216 

Form of assessment roll for 216 

■Old ditch, when may be utilized. 217 

Value of, how estimated 217 

Notice to land owners to hear objections 

to be given, when 

Form of notice. 217 

Proof of service of 218 

Assessment — hearing objections — appeal, 

etc 218 

Confirmation of assessments — form of 

order 218 

Appeals— summons— hearing, etc 219 

Divide work, etc. — let contract 223 

Not to impair use of bay or harbor 223 

•Contracts— how let— notice to be given. . . 223 

Form of notice of letting contract 223 

Assessment when paid in labor 224 

Bridges and culverts for protection by 

whom made 225 

.How paid for when in highway " 225 

How paid for when in farm 22o 

Sub-districts for, how created 225 

Penalty for injuring drain 225 

-Complaints in name of people 225 

Fines paid to commissioners 225 

Action for damages may be brought also. 225 

Damages recovered before justice 225 

By whom kept in order 225 

In counties not under township organiza- 
tion - 228-229 

District how established 228 

Petition for— requisites 228 

Appeals from order establishing— how 

taken 229 

In land in two counties or townships 229-230 

Mode of proceeding to establish 229 

Appeals from order— how taken 230 

Appeal allowed to county court 230 

Districts, how designated 230 

Special districts for 230-235 

How formed— petition— bond 230-231 

Hearing on petition 231 

■Commissioners, how appointed 232 

Election for, when held 232 

Notice to be given— form of. 232 

Meaning of word ditch 235 

By owner, or joint owner '. 235-238 

Through another's land, how obtained. . . 235 

Application— notice — requisites of 235 

Form of application to adjoining owner. 236 

Assent of owners— form of deed by 236 

Assent to be recorded 236 

When owner does not assent to— proceed- 
ings 236 

Form of notice of application commis- 
sioners 237 

Commissioners to locate ditch 237 i 

Form of application to locate 237 

Form of order organizing district for 237 ■ 

Right of way— how procured 238 

jJDrainage Commissioners. 

Commissioners of highways to be -206 



Page. 
Drainage Commissioners. Continued. 
Proceedings conducted under name .... 20f 
To be a body politic and corporate, style 

of name 206 

Town clerk of town, clerk 206 

Power to administer oaths 209 

Make and file written statements of find- 
ings 209 

When may dismiss petition 209 

Costs of, how apportioned 209 

Form of statement of finding 209 

May adjourn meeting of 209 

When finding in faver of petitioners to 

adjourn— proceedings 210 

Power to employ surveyor or engineer 210 

To locate work 211 

Cause map or plat of work made 212 

Kecord same in record book 212 

File statement for venire with justice 213 

Form of application by for venire for 

jury 213 

To view lands— assess damages and bene- 
fits, etc 216 

Make and file assessment roll of, etc 216 

Requisites of assessment roll 216 

Form of assessment roll 216 

May estimate value of old ditch 217 

Serve notice on owners of land affected 

by proposed work 217 

Form of notice to owner 217 

Proof of service, how made 218 

Form of order by, confirming assessment 218 

Hear objections to assessment 218 

Appeal from confirmation, how taken 218 

Form of appeal bond 218 

When to divide work 223 

Give notice of letting of contract 223 

Form of notice of letting 223 

May let contract as they please 223 

Contractor paid by order 223 

Pav or tender damages to owner before, 

etc 224 

When contest as to ownership, to pay to 

clerk, etc 224 

Use assessment to compromise, etc., suits, 224 

Enter on land to examine 224 

Prohibiting entry by— penalty 224 

Make additional assessments 224 

Make culverts and bridges for, etc 225 

Make, create sub-districts 225 

Keep drains, etc., in order 225 

Failure to do duty— penalty 226 

In counties not under township organiza- 
tion 228 

Corporate name of 228 

County clerk, clerk to . 228 

Meeting of commissioners— proceedings. 228 

Appeals from orders of, how taken 229 

From board of appeals to county court. . . 229 
In land lying in two counties or town- 
ships 229 

Clerk of board of commissioners, clerk of 229 
For special district, how and when ap- 
pointed 232 

To be body politic and corporate 232 

Have like powers as others 232 

Election for, when held 232 

Notice of to be given— form of. 232 

Who not eligible to be 233 

Term of office— how determined 233 

Oath of— form of. 233 

To appoint treasurer 233 

Duties of. 234 

Appeals from orders, how taken 234 

Power to borrow money 234 

Who to be treasurer of. 234 



512 



INDEX. 



Page. 
Drainage Commissioners. Continued. 
Adjoining owner— application to for drain 237 
Form of application to, to locate drain... 237 

Form of order by organizing district 237 

Enter order on record 237 

Map signed to be recorded 237 

Fees of— rendered on oath — filed with 

clerk 238 

Form of account for services 238 

Drainage District. 

How organized — 206 

Petition for filed in clerk's office 207 

How designated 211 

Form of order organizing 211 

In counties not under township organi- 
zation 228 

Corporate name of 228 

How established— petition— requisites of. 228 
In lands lying in two counties or town- 
ships 229-230 

How established— mode of proceeding. . . 229 

Appeal fr< >m orders, whom taken to 230 

How designated . . -■ 230 

Special drainage, how formed 230-235 

How formed— petition for 231 

To whom petition presented 231 

Be aocompan ied by a bond 231 

Hearing— affidavits to 231 

When petition granted — proceedings 232 

Corporate name— powers 232 

Election for commissioners, when held... 232 

Form of notice of election for 232 

Appeals from orders establishing,to whom 

taken 234 

Who to be treasurer 234 

By owner or joint owners, how formed 235 

Notice to owner— requisites of 236 

Form of notice and application 236 

Organizing district — form of order 238 

Drainage Record. See Record. 

Town clerk to keep 206 

Map of work to be recorded in 212 

Maps adopted recorded in 237 

Driver. 

Of carriage turn to right of road 114 

Drunken— penalty for keeping 116-117 

Notice to owner of carriage— discharge of 117 

Penalty ior not discharging 117 

Not to run horses on road 117 

Damages by, owner liable for 118 

Driver to hitch horses — 118 

Penalty for violation of law 118 

Election. 

At general counties may adopt township 

organization 33 

Returns of made to auditor 34 

Recorded on records of county 34 

First town election, when held 37 

Judges of, how and by whom appointed. 37 
Notices of time and place and names of 

judges 37 

Notices, by whom and when posted 37 

First town election how conducted 38 

When other justices and constables may 

be elected at 38 

Discontinuance of township organization 40 

Canvass of votes and returns 40 

For three county commissioners, when 

held 40 

For division of incorporated town, when 

and how held 42 

When town divided in two or more towns 43 
Held in each, time and place by whom 

fixed 43 



Page. 
Election. Continued. 
To unite contiguous towns, notice of how 
given 48 

Votes at, how canvassed 48 

For town officers, wnen held 66> 

Notice of, by whom and how given 6& 

Form of notice of 66- 

Each town to constitute an election pre- 
cinct 67 

Place of holding fixed by electors. ... 68 
Supervisor, assessor and collector judges 

of 68 

For town officers at annual town meeting 71 

School trustees, when elected 72 

Elections held for such heretofore legal- 
ized 72: 

Of commissioners of highways at town 

meeting 73- 

Places of holding of when voters exceed 

three thousanu . . . . : 74 

Places of holding when towns lie with- 
in incorporated city— judges of— ap- 
pointment 75- 

General election law to apply in town- 
ship elections 76- 

Result ot entered in minutes— read at 

meeting. 77 

Reading of notice of result to persons 

whose names are on the poll list 77 

Form of notice to person elected 79- 

When miscellaneous business concluded, 

election to proceed 84 

Form of order for special election of jus- 
tice or constable 90- 

Form of notice for special election of jus- 
tice and constable 90 

Vote on question of continuance of sup- 
port of poor 271 

For officers of township insurance com- 
pany, when, held 277 

For members of State board of equaliza- 
tion 32a 

Term of office— vacancies, how filled 323 

Election, how governed 323 

For presidential electors, when held 3'J9 

Canvass— returns— tie, how decided 399- 

Result published, etc 4(X> 

Governor to give certificate of 400- 

Vacancy, how filled 400- 

For representatives in congress.when held 401 
Governor, lieuienant governor, secretary 

of state, auditor, and attorney general.. 401 

Superintendent of public instruction 401 

State treasurer 401 

Judges of supreme court 401 

Clerk of supreme court 401 

Judges of circuit court 402: 

Judges of superior court 402 

Clerkof 402: 

Clerk of criminal court 402 

County treasurers 403 

County surveyor 403 

County superintendent of schools 403- 

State'» attorney 403 

State board of 'equalization 403- 

Recorder of deeds 403- 

County commissioners 403 

Election precincts in countiees not under 

township organization 404 

May be changed, when 404 

General and special held in precinct 404 

Each town constitute precinct 67-404 

County board may divide town 404 

All elections held* at place designated — 404 

Judges and clerks of— how appointed 404 

Supervisor, assessor and collector judges 

of. 40» 



INDEX. 



513 



Page. 
Election. Continued. 
Term of office 405 

Vacancies, how filled 405 

Clerks of, how appointed 405 

Oath of clerks and judges— form 405 

By whom administered 40G 

Ballot boxes and poll books for 406 

When constables appointed to attend.... 406 

Special constables at— compensation 407 

Power to keep order at, etc 407 

Notice, manner^of giving 407 

Who to post bame 408 

Manner of conducting 408-413 

Polls when opened 408 

Proclamation opening polls 409 

Ballot boxes exhibited, etc 409 

Poll lists, how kept 409 

Voting to be by ballot 409 

Form of ballot— form of cumalative 410 

Manner of receiving and depositing 410 

No adjournment or recess taken at 411 

Canvass of votes— proceedings 411 

Ballots to be strung and returned 411 

Examination of on contest 412 

Return— form of, by judges of 412 

Return delivered to county clerk 412 

Compensation of judges and clerks 412 

Challengers at allowed 413 

Qualification of voters 413-415 

Canvass of votes — certificate of elec- 
tion. 416-419 

Tie votes— notice of. 418 

Offenses and penalties 419-124 

Liquor not sold on election day 420 

False swearing— illegal voting 420 

Receiving bribe — disorderly conduct 421 

Betting on— offenses of judges, etc 422 

When judges or clerk disclose vote 423 

Neglect of clerk to do duty 423 

Failure to deliver poll books 423 

Neglect of county clerk of duties in 424 

Fraud in canvassing 424 

Defacing poll books, etc 424 

Contesting elections 425-429 

When legislature to hear, etc ... . 425 

Senate and house to hear of members. . . . 425 

Supreme court to hear of, etc 425 

Circuit court of county judge, etc 425 

County court of county, township and 

precinct officers 425 

Of state officers— petition, etc. 425 

Testimony— notice— powers of committee 426 

Report— hearing— decision 426 

Who may contest of senator and repre- 
sentative 426 

Notice of contest— service of— requisites 

of 426 

Testimony, howtaken 427 

Power of officer taken 427 

Depositions, etc., to be sent to secretary of 

state 427 

Rights of houses of legislature 428 

Contest of other officers 428 

Contestant to file statement 428 

Summons to issue— evidence, how taken. 428 

Trial as in chancery 428 

Any subject may be contested 428 

Written statement to be filed 429 

When elector may defend for county 429 

Judgment in cases 429 

When persons have tie on, hearing con- 
test. 429 

When election adjudged void 429 

Appeal from judgment 429 

Election transfer of territory, etc. — notice. 440 
Form of ballot— effect of vote 440 



Page. 
Election. Continued. 
When maybe ordered 441 

Election for county officers held on 442 

Electors. 

Powers of at town meetings 53-63 

Change of town meeting— proceedings. . . 68 

Powers at special town meetings 70 

At town meeting, choose moderator 73 

In absence of town clerk, choose person 

to act 74 

Choose assistant moderator at town meet- 
ing 74 

For president and vice, how and when 

elected 399 

Meeting of— compensation 400 

Vacancy in, how filled 400 

Registration of 433-438 

E strays. 

When may be taken up 107 

Who may take up and where 107 

Not to be used, except milch animals. . . . 108 
When several taken up by same person.. 108 

Notice by taker up, how and when 108 

Requisites of notice 108 

Appraisal to be before justice 108 

Copy of notice delivered to town clerk.. 108 

Record of in town estray book 108 

Form of notice of taking up by house- 
holder 108 

Form of town clerk's entry in estray book 108 

Male animal, when deemed 473 

Execution. 
On judgment for failure to work on high- 
way 138 

No property exempt from judgment for 

road labor 138 

Finding to be endorsed on 138 

Fine collected paid to overseer, etc 138 

Exemption. 
No exemption for commutation of road 

labor 138 

Acceptance by overseer of excuse to labor, 

effect of 138 

What property from taxation 283-285 

Express Companies. 

Personal property of, where listed 292 

Farm. 
Personal property on, where listed for 

taxation 290 

Fees. See Compensation. 

Of town officers 104-105 

Pound master 105 

Asseessors and deputy. 105-318 

Board of appointment 106 

None allowed for administering official 

oath 106 

Drainage commissioners 238 

Drainage clerk, board of appeals, in 

drains -. 238 

Fence viewers 251 

Drainage treasurer 238 

Accoums for, how rendered 238 

Form of account tor 238 

Auditor in organiziation of insurance co. 280 

Collector on distraint of property 342 

When State sues, to pay, etc 378 

License for tax on dogs, how collected. . . 394 
Justice and appraiser, asssessing damages 

to sheep 398 

Classification of counties for 463 

Fences. 

Electors power to regulate 56 

Owner may construct to protect hedge. . . 149 



514 



INDEX. 



Page, 
Fences. Continued. 

Owner may connect with bridge 150 

Consent of commissioners of Highways.. 150 
Form of consent to connect with bridge. 150 
Private road opened owner to remove... 178 
When road established, commissioners 

give notice to remove 195 

Failure of owner to remove, commissioner 

may cause removal 195 

Form of notice for removal 196 

Assessor and commissioners of highways 

viewers of 239 

In counties not under township organiza- 
tion, how appointed 239 

Termor office 239 

What considered lawful 239 

Electors may determine what is lawful.. 239 

Division fence— removal of— notice 240 

Form ol agreement to divide and main- 
tain division 240 

When owner to contribute to value 241 

Value determined by viewers 242 

Form of notice to adjoining owner to 

choose viewer 242 

Neglect to rebuild or repair, viewers to 

examine 243 

Form of viewers determination as to value 

of division 243 

Form of notice to owner who neglects to 

repair ; 243 

Disputes of owners settled by viewers — 244 
Form of notice for examination of fence 244 
Form of direction by viewers to build. .. 244 

Viewers— how chosen 246 

Form of notice to choose 246 

Form of submission of dispute 246 

Duties of viewers in 246 

Decision of two, final 247 

Form of decision by viewers in relation to 257 
Reduce to writing, file with town clerk, 

etc 247 

Form of decision where another selected 247 
Neglect to repair or build after notice — 

damages 248 

Form of notice to contribute to erection 

or repair 248 

Form of appraisal of damages, neglect to 

repair, etc 248 

When fence destroyed, etc., notice to re- 
pair 249 

Form of notice to make or repair 249 

Neglect or refusal to repair 249 

Removal of— one year's notice 250 

When owner may not remove 250 

Form of notice of intention to remove. . . 250 

Removal without notice— liability 250 

Mistake in locating— remedy 250 

When not to be removed 251 

Fees of viewers of 251 

Damages for breaking into 251 

Animals breaking into enclosure 252 

Owner may keep until, etc 252 

Rescuing animals breaking into— penalty 252 

Railroad to make on sides of track 253 

Tearing down of— penalty 256 

Pence Viewers. 
In township assessor and commissioners 

are 239 

In counties not under township organiza- 
tion county board to choose 239 

Value of fences ascertained by 242 

Give notice to repair or build fence 243 

Form of determination as to value of 

fence 243 

Form of notice to owner who neglects to 
repair, etc 243 



Page. 
Fence Viewers. Continued. 

Disputes settled by 244 

Form of notice for examination of fence 244 
Form of direction by to build or repair.. 244 

How chosen — notice, etc 246 

Decision of to be in writing 247 

Form of decision by 247 

Form of appraisal of damages by, etc ... 248 

May examine Avitnesses, etc 251 

Power to issue subpoenas— administer oath 251 

Form of subpoena for witness 251 

Fees of 251 

Fencing Railroads. 

Must maintain fence on both sides of road 253 

Railroad to make in cities, etc 253 

Railroad maintain cattle guards 253 

Railroad, when liable lor damages 254 

Keep right of way free from weeds— pen- 
alty 255 

Allowing animals on right of way— pen- 
alty 256 

Neglect or refusal to build fence, etc 256 

Form of notice to build or repair fence, 

etc 256 

Service of, how made 256 

Adjoining owner may build and recover 

for 257 

Damages may be recovered of railroad, 
when 257 

Funds. 

Supervisor keep and pay out of town — 93 

Supervisor keep account of 95 

Highway treasurer to have charge of 

roads 125 

Drainage treasurer to keep of district — 222 
Drainage treasurer to pay out on order 

222-233 

Of county, how kept. 387 

County collector make monthly report of 387 

Keep account as collector separate 387 

Sheep license fund, by whom kept 394 

How and by whom paid out 394 

Of county, by whom controlled 449 

Guide Boards. 
Erected by highway commissioners 124 

Gas Company. 
Personal property of, where listed 291 

Governor. 

When elected 401 

Lieutenant governor, when elected 401 

Vacancies in office— now filled 431 

Hedge. 

Owner of land may raise 148 

Construct fence to protect 149 

Inhabitants. 
Of town, when competent as witnesses.. . 65 
Competent as jurors— exception, when. . . 65 
Assessed for road labor 128 

Instrument. 
Form of by supervisors ordering town 
clerk to post notices of special town 
meeting 196 

Illinois Central Railroad. 

Pay into treasury part income 390 

Furnish copy of to auditor 391 

Governor power to examine books of, etc. 391 

Lands of taxable when conveyed 391 

Revenue from, how applied 391 

Judges. 

Of supreme court, when elected 401 

Of circuit and superior courts, when 402 

County, when elected 402 

Of courts, vacancies in office, how filled. 431 



INDEX. 



515 



Page. 
•Judges of Election. 

When and by whom appointed first town 

election 37 

Names of inserted in election notice 37 

Appointment of when new town created 43 
Supervisor, assessor and collector of town 

ex officio 68 

Moderator of town meeting like powers 

as 73 

Subject to same penalties 73 

In incorporated city to choose clerks of 

election 75 

Take oath prescribed by general election 

law 75 

Poll list kept by at election held in town 

in incorporated city 75 

€anvass votes polled in manner provided 75 

Make written statement of, etc 75 

Transmit to town clerk certificate poll list 

and ballots 75 

How and when appointed 405 

Term of office— vacancy, how filled 405 

Choose clerk of election 205 

Take oath— form of, 405 

Compensation of. 412 

Offenses by — penalty 423 

Judgment. 

Against town for costs 65 

Against town, a town charge 66 

For refusal to work road tax 138 

Notice by collector of application for judg- 
ment for taxes 349 

How long published and where 349 

Requisite of 349 

Figures may be used in 351 

Applications for, when made 351 

Proceedings for sale of property for taxes 

354-357 

Against property considered several. 354 

Form of order of 355 

Order to be signed by judge 355 

Appeals, how taken 356 

When not allowed unless, 356 

Proceedings in appeal from 357 

Effect of failure of county collector to 
obtain 372 

Jurors. 

Electors and inhabitants of town compe- 
tent—exception 65 

To assess damages, how selected 164 

Form of venire for 164 

May be challenged as in other cases 165 

To take oath on assessment of damages.. 166 
Form of oath in assessment of damages. . 166 

Trial— verdict— judgment in 167 

Form of verdict in assessment of. 167 

When several owners— proceedings 168 

Form of verdict in assessment for drains. 215 
How summoned in — vacancies, how filled 215 
When inhabitants of county competent.. 454 

Justices of tlie Peace. 

In towns under township act continue to 

holdover 38 

Others in addition to be elected 38 

Term of office when elected in new town 43 

Town may prosecute action before 65 

Action before for disorderly conduct — 

town — at town meeting 83 

Form of order for special election for. ... 90 

Form of notice for special election for. . . 90 
When may accept resignation of town 

officer 91 

To give notice of resignation to town 

clerk 91 

Jilernbers of board of town auditors 99 i 



Page. 
Justices of the Peace. Continued. 

Not entitled to fee administering oath to 
town officer 106 

City council in town in cities may regu- 
late number 107 

Number elected not to exceed number al- 
lowed by law 107 

Estrays to be appraised before when taken 
up 108 

Jurisdiction in cases arising under act 
concerning roads 118 

Jurisdiction when commissioners of high- 
ways refuse to perform duties 133 

Issue summons on refusal of persoa to 
work on road 137 

Form of summons for refusing to work. . 137 

Hear and determine case— issue execu- 
tion, etc 138 

When to summons jury to assess dama- 
ages 163 

Form of venire issued by for 164 

Notify owners of land to appear and 
prove damages 165 

Form of notice to prove damages 165 

Form of docket entry by justice in assess- 
ment of damages 168 

To cause three supervisors to hear appeal 182 

Duty of to issue venire 213 

Serve notice in writing on land owner. . . 213 

Form of notice to land owner 214 

File transcript of proceedings in drainage 
assessments 215 

Proceedings had before in loss of sheep 

396-397 

Form of summons for appraisers for dam- 
ages to sheep 397 

Form of oath administered by to apprais- 
ers 397 

Form of certificate to estimate of dama- 
ges 398 

Fees for duties in proceedings 398 

Jurisdiction in animals running at large. 469 

License, 

On dogs, how assessed and collected 394 

Fund, howpaid out 394 

Lien. 

Execution for road labor 138 

01 taxes on real property 375 

On personal property 376 

Personal liable for tax on real 376 

Real for tax on personal 376 

When tax on personal not charged to land 376 
Of agent for tax paid for, etc 376 

Limitation. 

Time to open road for private or public 
use 177 

To open roads laid on appeal 198 

Not opened in five years deemed vacated 198 
Liquor. 

Selling on election day— penalty 419 

Manufacturer. 

Property of listed for taxation, where — 291 

Map. See Plat. 
Of work to be made by drainage commis- 
sioners, when 211-212 

Form to be added to 212 

When recorded in drainage record 237 

Meeting. See Town Meeting. 

Final in laying out road, etc 169 

Form of notice for final 169 

Of board of equalization, when held 324 

Of board of registry, when 433-435 

Of county board, regular and special 457 



516 



INDEX. 



Page. 
Meeting. Continued. 
Annual and regular of board of supervi- 
sors, when 458 

Special of, when — how called— notice 459 

Of county commissioners of Cook co . . . . 463 

Memorandum. 

Form of decision of town clerk of the 
votes between candidates 78 

Minutes. 

Form of proceedings of town meeting .... 81 

Moderator. 

At town meeting chosen by electors 73 

Duty to preside at meeting 73 

Subject to penalties as other judges of 

election 73 

Has same powers as judges of election. . . 73 

S'hall take oath of office 73 

Form of oath of office 74 

Oath administered by town clerk 74 

When assistant may be chosen 74 

Assistant subject to same penalties as mod- 
erator 74 

Assistant under direction of the modera- 
tor 74 

Assistant to take oath 74 

Election of town or city to be chosen at . . 76 
Call town meeting to order for miscella- 
neous business 79 

Sign entry of town clerk of minutes of 

meetings 81 

Duties of at town meeting 82 

Ascertain and declare result of vote on 

questions 82 

Money. 

What kind receivable for revenue 340 

Name. 

Towns, how named 36-37 

County board power to change 36 

Record of names to be kept by auditor.. . 37 

Of towns when united to be given by 
county board 48 

Corporate name, style of 49 

Town sue and be sued by name— excep- 
tion -.- 64 

Drainage district, how named 211, 228-232 

Style of corporate name of county 446 

Night Soil. 

Electors power to prevent deposit within 

town 59 

Notice. 

Of first town election— by whom made. . . 

Sheriff to post 

Form of notice of first town election 

Of election on division of town 

Form of creating new town, or changing 
boundaries 

Of meeting of supervisor and assessors to 
apportion property 

To whom given, state place of meeting.. 

Of election to unite towns 

For building or repairing bridge, etc.. in 
another town 

Form of by justice to owner of impounded 
animal 

Form of when owner not known. 

Of annual town meeting 

By whom given in absence of town clerk 

Request for change of town meeting in- 
cluded in 

Form of notice of request to change place 
of town meeting 

Form of notice for special town meeting 



68 



Page.. 
Notice. Continued, 
For special town meeting, how and by 

whom given 69 s 

Shall set forth object of meeting 70" 

Result of election read at town meeting 

notice to voters on poll list 77 

Given to parties when tie vote 78- 

Of election to office, when and by whom 

given ... 78- 

Form of notice of election to town office. 79- 
Form of notice of special election of jus- 
tice or constable 90 

Form of notice by town clerk to one ap- 
pointed to vacancy 90' 

Notice of resignation of town officer to be 

given by justices to clerk 91 

Of resignation of justice or constable 

given to county clerk 91 

To party of drunken driver 117 

Form of notice to keeper or owner of car- 
riage 117 

Form of to owner of carriage of intoxica- 
tion of driver 117 

Town clerk to give of road tax assessed. . 132 
Form of notice of assessment of road tax 133 
Give notice to person appointed overseer. 135' 
Form of notice to person appointed over- 
seer 135 

To person assessed to work on highways. 135 
Form of notice to person appointed over- 
seer 13& 

Form of notice to person to work on high- 
ways , 136 

Persons assessed personal or land tax to 

have notice— form of ' 13& 

Reasonable to be given party obstructing 

road, etc 147 

Form of notice to hear reasons for or 

against roads, etc 156 

Form of notice of adjournment of meet- 
ing 157 

Given to owners where road damages 

assessed 164 

Form of notice to land owners of appli- 
cation for jury to assess damages 164 

Form of justices notice to land owner to 

prove damages 165 

Form of certificate of commissioners 
when owners unknown or non-resident 165 

Notice to owners, how served 166 

Final of determination of highway com- 
missioners 169' 

Form of commmisioners notice of final 

meeting 169- 

Form of notice appeal to be given to com- 
missioners and petitioners 181 

Form of notice to commissioners of ad- 
joining towns to join in contract to 

build bridge 190 

Form of notice of public letting of road 

contract. 194 

Given to owner to remove fences 195 

Form of for removal of fences 196 

Form of notice for voting larger tax levy. 201 
By town clerk of filing drainage petition. 207 

Of meeting of commissioners 207 

Form of notice of filing drainage petition 208 
Form of notice to consider drainage peti- 
tion 208 

By town clerk of adjournment of meeting 208 

By drainage commissioners, 210 

Form of notice of adjourned meeting of 

drainage commissioners 210 

Form of to land owner by justice 214 

Served by constable 214 

Proof of service, how made 218 



INDEX. 



517 



Page. 
Notice. Continued. 
Form of to adjoining owner to choose 

fence viewers, etc 242 

Form of to adjoining owner who neglects 

to repair, etc — 243 

Form of to parties by viewers for exam- 
ination of fence 244 

Form of to owner to choose viewers to 

settle disputes 246 

Form of to owner to contribute to erec- 
tion, etc 248 

Form of to make and repair fence in- 
jured 249 

Form of, of intention to remove fence.. . 250 
Form of to owner animals trespassing. . . 252 
To railroad of neglect to build fence, etc. 256 
Form of notice to railroad to build or re- 
pair fence 256 

•Service of, how made 256 

Form of notice to railroad agent to repair 

crossing . • • 258 

Form of to remove non-resident pauper. 265 
Purchaser at tax sale to give to owner — 364 

Form of notice of loss of sheep 397 

Manner of giving of elections 407 

Form of in elections 407 

'Of elections by whom posted 408 

In transfer of territory, etc.— requisites of 440 
For election lor additional county tax.. . 452 
Form of by county clerk to vote on ani- 
mals running at large 470 

UJnrsery. 

Stock of listed as merchandise 291 

Oath. 

Moderator of town meeting to take 73 

Form of oath for moderator 74 

Administered by town clerk 74 

Assistant moderator to take oath 74 

By persons elected to town office 85 

Filed with town clerk 85 

Form of oath by town officer 85 

Form of oath on going out of town officer 88 
Town clerk administer to town officer. . . 97 
No charge for administering to town officer 107 
Commissioner of Canada thistles take 

same as town officer 109 

Form of oath of jury for assessment of 

road damages 166 

.Drainage commissioners power to admin- 
ister 209 

Form of drainage commissioners 233 

When assessor may examine person under 295 
Member state board of equalization to take 323 
Town and district collectors to take — 

form of 333 

To be recorded 333 

County collector to subscribe 337 

Form of. 337 

Under revenue act assessor, etc., may 

give 

Form of oath of appraisers of sheep 

. Judges and clerks of election to take 

By whom administered 

In election, affidavits, how administered. 

To voter not registered, by whom 

To officers new county, by whom given . . 
Members county board to take — form of.. 

•Chairman county board administer 

Chairman board of supervisors may 

County clerk to take— form of — 



Obstruction. 

Injuring or obstructing road — penalty 

When commissioners ot highways *may 

remove, etc 

Form of notice by to remove 



Page. 
Offenses. See Penalties. 

At elections. 420-421 

Receiving bribe, etc 421 

Offering bribe 421 

Disorderly conduct 421 

Betting on 421 

Of judges of 422 

Judge or clerk disclosing vote 423 

Neglect of duty by clem 423 

Failure to deliver poll books 423 

Neglect of county clerk in canvassing 

votes— penalty 424 

Fraud by clerk or justice in— penalty 424 

Delacing poll books, etc— penalty 424 

Official Bond. See Bond. 
Office. 
Qualification and tenure of town office. . . 84 

Vacancies in town office, how filled 88 

In board of appointment 88 

Term of town officers 87 

Term of commissioner Canada thistles... 109 
Term of members state board of equali- 
zation 323 

Term of county commissioners cook co.. 462 

County clerk keep at court house 466 

Terms of officers in general .401-404 

Officers. 
Town officers, when and how elected — 71 

Term of office of town officers 87 

Successor of to demand books, etc 87 

Demand in case of vacancy 87 

Dutv of outgoing to deliver over records, 

etc 87-88 

When required to deliver up on oath 87 

Supervisor and commissioner of high- 
ways to pav over money on going out of 

office 88 

Upon death of, demand of executor, etc. 88 

Form of oath of out going officer 88 

Form of return on service of notice on 

land owner 166 

Of township insurance co.. when elected. 277 

State and county, when elected 401-404 

Contesting election of— proceedings.. .425-429 
Oath of to new county by whom adminis- 
tered 443 

Order. 

Joint of commissioners of towns 50 

Form of for special election of justice or 

constable 90 

Form of order revoking proceedings on 

road petition 169 

For altering, widening or laying out road 169 

To be filed with town clerk 170 

Form of laying out, altering or widening 

highway, damages assessed 170 

When damages released or agreed on — 171 
Form of laying out, altering, etc., when 

damages released or agreed on 174 

Form of order establishing, altering, etc. 

of road on county or town line 179 

Form of establishing, etc., road on county 

or town line 179 

Form of order of commissioners referring 

expenses, etc. to freeholders 180 

Form of order of supervisors fixing time 

and place to hear road appeal 183 

Form of order of supervisor on road ap- 
peal from decision in favor of road — 183 
Form of order on road appeal— decision 

refusing road 184 

Orders of commissioners to be received 

by tax collector, when 195 

Form of drainage commissioners organ- 
izing district 211 



51S 



INDEX. 



Page. 
Order. Continued. 
Form of supervisors confirming assess- 
ment 220 

Form of order of drainage commission- 
ers 222 

Form of order organizing drainage dis- 
trict 237 

Overseer of Highways. 

Form of acceptance of office by 86 

When required to notify persons to work 

on highways 123 

File list with town clerk 128 

Duty to add names of persons on list when 132 
How chosen — term of office— qualifica- 
tions 133 

Repair and keep in order highways 133 

Warn persons to work on highways 133 

May contract to perform labor on road or 

bridge 133 

Form of receipt for poll tax worked out 

by contract 133 

Form of list of inhabitants liable to work 

on highways 134 

Collect fines and commutations 134 

Execute orders ol commissioners of high- 
ways — 134 

Refusal to serve— successor how appointed 1 34 

Form of appointment of overseer 134 

Penalty for refusal or neglect to perform 

duties 135 

Notify person to perform road labor 135 

Form of notice to person appointed 135 

Commutation money paid to— how ex- 
pended 136 

Power to require owner of team, cart, etc., 

to work on highways 136 

Credit owner of, two days for each day's 

service with 136 

Persons assessed may hire substitute to 

work on highways 136 

To make complaint for penalties 137 

Failure of commissioners may act 137 

Give notice to persons assessed land or 

personal property tax 139 

May require persons to furnish imple- 
ments, etc 139 

Form of notice to work land or personal 

property tax 139 

To mark paid— give receipt 139 

Deliver to supervisor delinquent list, etc., 

when 139 

Form of affidavit by upon return of list 

to supervisor 140 

Penalty for neglect 140 

Duty to have three-fourths road labor 

worked before September 140 

Pender an account— form of annual 140 

Compensation of. 142 

Overseer of tlie Poor. 

Town auditor's to examine account of. . . 
Make complaint of in case of pauper, etc 

Supervisors ex officio in, etc 

When county board may appoint 

When not to apply 

Give bond to county 

In counties not under organization 

Duties of 266- 

Commit poor to care of householder, etc. 
Form of contract for support of poor per- 
son 

Form of approval of by town auditors. . . 

Form of bond to 

When may give temporary relief 

When may aid non-resident sick, etc 

Make report to county board, when 



Page- 
Overseer of tlie Poor, Continued. 

Return list of poor, etc 269« 

Make report to town auditors, when 269 

Keep account of persons relieved, etc 270' 

File copy account with county clerk,when 270' 
Failure or neglect to make'report— pen- 
alty 271 

Parliamentary Law. 

Public meeting — organization of 475> 

Manner of presenting business 477 

Motions— manner of proceeding 477 

Motions in general 478 

Motions to amend 479-480' 

Order and succession of questions 480 

Reconsideration of question 481 

Committees— report 481-482. 

Paupers. 

How and by whom supported 261 

When so from intempeiance 262 

Who first called on to support 262 

Married females not liable for support.. . 262. 
Failure to support, complaint by state's 

attorney 262 

Overseer may make complaint 262 

Notice to be given defendant 262. 

Trial— judgment : 262-263 

Court may direct contribution 263 

Partial support — court may direct 263 

Order of court changed from time to time 263 

Payments, how enforced 263 

Costs, to whom adjudged 263 

Bringing into county — penalty 264 

When county to support poor 264 

When towns to support 264 

When not resident of county — removal.. 265- 
Form of notice to remove non-resident.. 265 

Term residence defined. 265 

Supervisor overseer ex officio 266 

To execute bond 266 

Overseer in counties not under township 

organization 266 

Duties of overseers 266. 

May let out support of 267 

Form of contract for support of 267 

Person to whom let to give bond 267 

Form of approval of bond 267 

Temporary relief, when given 268 

Form of bond by contractor to support 

poor ... 268 

Aid, when given to non-resident poor 268 

Overseer make report 269- 

When supported by town, report to town 

auditors 269 

Powers of county board over poor. . . . 269-270 
Overseer of to keep accurate account, etc. 270 
File copy of account with coun'ty clerk. . 270 
County agent to keep like account, etc. . . 270 
Keeper of poor house keep account, etc.. 270' 
Neglect of overseer, etc., to make reports 

—penalty 271 

Poor to be kept at poor house 271 

Township support— how abandoned — . 271 

Residence of. . . 272 

County board may adopt separate support 272 

May fix rate each town shall pay 272 

Town may have supported in poor house 272 

When town fails to support 272 

County agent to report 273 

Tuition of children of 273 

Penalty. 
Powers of electors at town meeting to 

impose 61 

Not to exceed $50 61 

How applied 62. 

For disorderly conduct at town meeting. 8$ 



INDEX. 



519 



Page. 
Penalty. Continued.' 
On refusal of persons elected to office. to 
serve 87 

For neglect of supervisor to file statement 

of affairs of town 94 

Town clerk neglecting to record and post 

up same 94 

How recorded, against town clerk and su- 
pervisor. 94 

When recovered, how appropriated 94 

Duty of supervisor to prosecute for 95 

Failure of supervisor to perform duties. . 97 
Failure of town clerk to certify taxes to 

countyclerk 98 

Neglect to keep on right of road 215 

For keeping drunken driver 117 

For running horses on public road 117 

Teams for passengers to be hitched— pen- 
alty for neglect 117 

Against driver of vehicle violating law of 

road, etc 118 

Failure of highway commissioners to per- 
form duties 124, 133 

Neglect of overseer to perform duties — 135 

How sued for— how applied 135 

Failure of substitute to work on highway 136 

Imposed on person assessed 136 

Against person remaining idle, etc., on 

highways 136 

Failing to appear when assessed and noti- 
fied 137 

Complaint lor made by overseer 137 

Fines, how applied 137 

Neglect of overseer to deliver delinquent 

list, etc 140 

Neglect of overseer to render account 141-142 

How recovered 142 

Destroying, defacing, etc., guide boards. . 144 

Injuring or obstructing road. 145 

Injuring sidewalk, culvert and causeway 148 

Suits for recovery, by whom brought 148 

Application of fines— to whom paid to . . . 148 

For fast driving on bridge 151 

Prohibiting drainage commissioners en- 
tering lands 224 

Injuring drain— how recovered 225 

Actions for damages in addition to pen- 
alty 225 

Failure of drainage commissioners to do 

duty 226 

Fine recovered, to whom paid 226 

For rescuing animals in enclosure when 

taken 252 

Neglect of railroad to make cattle guards, 

fences, etc 255-256 

Tearing down of fences, etc 256 

Killing of stock willfully 258 

Starting railroad train without signal — 258 
Neglect to make railroad crossings, etc. . . 258 

For neglect, how recovered 259 

Neglect to comply with law to construct 

crossings, etc 259 

Neglect or refusal to place flagman 259 

Violation of law for railroad fences and 

crossings 260 

Bringing into county paupers 264 

Failure overseer poor to make report 271 

Neglect to return schedule to auditor, etc 304 

How recovered 304 

Making false schedule 306 

Failure county collector or clerk to attend 

tax sale 360 

Failure county clerk send auditor certi- 
fied sale list 361 

County clerk delivering tax books before 
collector's bond filed 3S5 



# Page. 

Penalty. Continued. 
Neglect collector to obtain judgment, etc 385 
Failure to do duty under the revenue law 386 

Selling liquor on election day 420 

Illegal voting 420 

For offenses judges of election 423 

Disclosing vote 423 

NegJect of duty of clerk of election 423 

Neglect of duty of county clerk 424 

Defacing poll books, etc 424 

Tearing down registry list 434 

False statement as to right to vote, etc. . - 437 
Neglect of members county board per- 
form duty 457 

Allowing male animals at large 472-473 

Owner liable for damages also 473 

Personal Property. 

Form of alphabetical list of for road tax. 131 
Not exempt from levy for road or street 

labor 138 

Persons assessed to have notice to work, 

when 139 

Liable to taxation 282 

Rules for valuing for taxation 285 

When listed for taxation 287 

By whom listed 288 

What held to be 289 

When and manner of listing 289 

Farm, how and where listed 290 

In transitu where listed 291 

Nursery stock listed as 291 

Of banks, brokers, jobbers, etc., how 

listed 291 

Of gas and coke companies 291 

Street railroad, gravel and plank roads, 

how listed 292 

Horse and stage companies property 292 

Of express or transportation companies . . 292 

Consignee of, list interest in 292 

Interest on bonds 292 

Deed held for money 292 

Where owner of assessed.. 292 

Place of listing, how fixed ' 292 

Owner to make schedule 293 

Refusal or neglect to make, misdemeanor 293 

Form of schedule 293-295 

Assessor may examine owner under oath 295 

Falsely swearing, guilty of perjury 295 

Rules for listing credits 295 

Rules for listing and valuing of banks, 

brokers, etc 296 

Pawn broker, when to list 297 

Of railroad company to be listed 303 

Rolling stock of railroad as 302 

Of telegraph companies, how listed and 

assessed 306 

Rules for equalizing personal property. . . 324 

Form of return of delinquent tax on 345 

Uncollected tax, how collected 384 

Petition. 

For township organization 34 

To whom presented— requisites . . 34 

For discontinuance of township organiza- 
tion 40 

For alteration of boundaries of towns — 42 
Uniting contiguous towns— requisites — 48 
Altering, widening, vacate or establish- 
ing roads 153 

Form of for altering, widening or vacat- 
ing road 153 

Form of for new road 154 

Form of for private road 176 

Form of for appeal from decision of com- 
missioners 181 

Form of for appeal in case of town line.. 188 



520 



INDEX. 



Page. 
Petition. Continued. . 

To build bridge with aid of county, by 

whom presented 191 

Form of to county board for appropria- 
tion to aid in building bridge 191 

Form of for special town meeting to vote 

to borrrow money to build bridge 192 

Form of for re-survey of road 194 

To organize drainage district— requisites. 206 
Form of petition to organize drainage dis- 
trict 207 

For transfer of property to county 439 

For formation of new county 441 

For allowing animals to run at large- 
form 470 

Plat. 

i Of road districts, when and by whom 
I certified to county clerk 144 

Copy of in town and county line proceed- 
ings filed and recorded in counties, 
when 178 

Of roads, when to be filed in town clerk's 
office 194 

Of roads, etc., laid out, etc., to be recorded 
within six months 203 

Neglect to— penalty — , 203 

Of work to be done by drainage commis- 
sioners, when 211-212 

Of real estate when sub-divided, to be re- 
corded 307 

Polls. 

Time of opening and closing 408 

Proclamation on opening and closing. . . . 409 

Poll List. 

Separate kept in incorporated towns and 

villages 75 

Form of to be kept at town meeting 76 

Kept at election— form of 409 

Penalty for defacing, etc 424 

Filed with registry list, when 437 

Poll Tax. 

Inhabitants to work on highways 128 

Number of days required 128 

Assessed by highway commissioners 130 

Form of order assessing highway labor.. 130 
Credit given for labor on private roads. . . 132 

Persons warned to work by overseer 133 

Overseer may contract to work out 133 

Form of receipt for worked out by con- 
tract .133 

Form of list of inhabitants liable to 134 

Overseer of highway give notice to work 135 

"When overseer may commute 136 

Overseer may require teams of person 

assessed 136 

Substitute for person assessed. 136 

Form of notice to work on highways 136 

Idlers, etc.— penalty for 136 

Neglect to appear to work— penalty 137 

Complaint on neglect to appear 137 

Summons issued by justice— form 137 

Trial— execution 138 

No personal property exempt. 138 

Fine when collected paid to overseer. . . . 138 
Acceptance of excuse not exempt from 
road labor 138 

Population. 

Of towns on election of additional super- 
visors, how ascertained » 71 

Poor House. 

County board may build 269-270 

Keeper of keep account 271 

File copy of account with county clerk. . 271 



„ Page. 

Pounds. 

Electors at town meeting power to estab- 
lish 57 

Pound Masters. 

Electors at town meeting determine num- 
ber, duties and election of. 57 

Notice of sale by— form of 61 

When elected and notified to file accept- 
ance of office 86 

Neglect to accept refusal to serve 86 

Form of notice of acceptance of office. .. 86 

. Fees allowed to 105 

Powers. 
Corporate powers of towns enumerated 51-52 

Sue and be sued 51 

Acquire property 51 

Make contracts 51 

Of electors at town meeting 53-63 

Make orders for sale of property, etc 53 

Take necessary measures for exercise of 

corporate powers 53 

Direct raising of money for purposes enu- 
merated 53-55 

Of drainage districts, see drains 205-238 

Of township insurance company 277 

Corporate of county enumerated 448 

Of county commissioners Cook co 462 

Precinct. See Elections. 
Each town to constitute for town meetings 67 

Election— change of, etc 404 

Private Roads. See Roads. 

May be laid out on petition, 176 

Form of petition for private and public 

use 176 

Damages assessed— paid by persons bene- 
fitted 176 

Remainder of how paid 176 

Damages paid before road opened 176 

Opened within two years from making 

order 177 

Crops and fences owner of have time to 

remove 178 

Work done on may be paid for by com- 
missioners 178 

Property. 

What taxable 281-283 

What exempt from taxation 283-285 

Rules for valuing personal 285-287 

Rules for valuing real 287 

Personal when listed 287 

Who shall and what listed 288 

Where listed— what held to be personal. . 289 

Manner of listing personal 289 

Railroad tax on, how extended and col- 
lected 305 

Proceedings in equalization of by state 

board 324 

Forfeited for tax added to current year.. . 331 

Sale of distrained. . 342 

Surplus after sale returned 342 

Form of return of delinquent 346 

Forfeited property, record to kept of by, 

etc 368 

Redemption of purchase of 368 

Report and payment of money collected 

on forfeited 369 

Back tax added— effect of. 369 

County board may institute suit for, when 369 
Omitted property, how taxed 383 

Qualification. 

Failure of person appointed to office to 

qualify 39 

Of persons to vote at town election 83 

To hold town office *. 84 



INDEX. 



521 



Page. 
Qualifications. Continued. 
Person elected to town office subscribe 
oath 85 

Neglect to take oath, a refusal to serve. . . 85 
Neglect of pound master to file accept- 
ance 86 

Failure of collector to give bond. 86 

Failure of supervisor to perform duties. . 97 

Of town and district collectors 332 

Of voters — affidavit— form 415 

Oath of witness to affidavit of voter 415 

Convicts disqualified to vote 415 

Quorum. 

What constitutes of state board of equali- 
zation 327 

Majority of in county board 458 

Board of supervisors, majority of. 460 

S-ailroads. 

Fence track 253 

Construct cattle guards, etc 253 

Clear way of dead grass, etc 256 

Neglect to build fence — notice — form of. . 256 
Maintain warning boards at crossings. . . . 257 
Blow whistle and ring bell at crossings. . 257 

Killing stock— penalty. 258 

Starting train without signal— penalty... 258 
-Construct and maintain crossings, etc — 258 
Neglect to make crossings— notice to — 

form of 258 

Penalty for neglect or refusal to make 

crossings 259 

Holden for expenses of crossing 259 

Not to obstruct highway, etc 259 

To place flagman at crossing 259 

Penalty for neglect— how appropriated. . . 260 

Penalties general , . . . 260 

Not apply to street railroads 260 

Person afproperty of street, where listed. 291 
Track, road and bridge of personal prop- 
erty 292 

Manner of listing and valuing property 

of 301-305 

"Tax on property of, how extended and 

collected 305 

Track and rolling stock, by whom assessed 325 

Railroad. Track. 

What designated as 302 

Held to be real estate for taxation 302 

How listed and valued 302 

Where listed and assessed 302 

Rates. 

For taxation, county clerk to extend 327 

For state purposes, how ascertained 328 

• Taxes for school purposes 328 

Auditor to certify to county clerk 32a 

County purposes, how ascertained 329 

For towns, cities, districts, villages, etc., 

how ascertained 329 

County clerk to extend, etc 330 

For cities, towns, etc., estimated by coun- 
ty clerk 331 

How extended 331 

Real Estate. 

Disposition of on division of town 44 

Form of agreement by supervisor and 

assessor 44 

Disposition on annexation of tc^wn 44 

Town power to hold, etc., and convey. ... 51 

Effect of conveyances to town 64 

Form of deed of conveyance by town. ... 63 

When town may partition 65 

Tax on for roads ascertained by highway 

commissioners 129 

Persons assessed to have notice to work . . 138 



Page. 
Real Estate. Continued. 

Liable for taxation 282 

Rules for valuing 287 

Platted ground of railroad, how described 305 
When listed for taxation and who liable 

for tax. . 306-307 

Exempt leasehold interest when to be 

listed 307 

Government — swamp — Illinois Central, 

etc., when taxed 307 

When owner to have land surveyed and 

platted 307 

Plat of surveyed land certified and re- 
corded 307 

Owner neglecting to survey, etc., clerk to 

cause 308 

How listed for taxation as between coun- 
ties 308 

How listed for taxation as between towns 309 

How equalized for taxation 326 

Form of return when delinquent 346 

When delinquent special assessment 

placed against 348 

Sale of for taxes 357-361 

Sale of on execution for state— redemp- 
tion 379 

Recess. 

At town meeting during time of transac- 
tion of business 77 

Record. 

Auditor of State keep of bounds and 
name of town 37 

Town clerk to record supervisor's state- 
ment 94 

Of town, clerk to keep and have custody 
of 97 

Town clerk to record proceeding of town 
meeting, etc * 98 

Town clerk to record proceedings of town 
auditors 102 

Town clerk to record estray notices 107 

Roads imperfectly described, etc., entered 
in town clerk's office 121 

Commissioners of highway to keep of 
meetings 127 

Town clerk record road papers 160-170 

Clerks record of roads, evidence 175 

Form of certificate of clerk to copy of 
road 175 

ToAvn clerk to keep drainage 206 

Map of drains when to be recorded in — 237 

County clerk to enter land sold for taxes 
on 358 

Sale and redemption record be furnished 
by county 359 

Forfeited lands noted on sale and redemp- 
tion 359 

Of forfeited property, by whom kept 364 

Of assessment, etc., when destroyed — pro- 
ceedings 381 

Of new county, commissioners appointed 
to make 444 

Copies of record of new county, evidence 444 

Record of Roads. See Record. 

Recorder. 

Of deeds, when elected 400 

Redemption. 

Of real property sold for taxes, when be 

made 361 

By minor heirs 362 

By tenants in common 362 

To whom it enures when made .... 362 

Suffering land to be sold again 363 



522 



INDEX. 



Page, 
Redemption. Continued. 
Books and records of county clerk evi- 
dence of sale. 363 

Of land erroneously sold 363 

Effect of receiving money for 364 

Of forfeited property 368 

Of property sold for state, how made. . . . 379 

Deed for auditor to obtain 379 

Registration of Electors. 

Who constitute " board of registry " 433 

When to meet « 433 

When registry to be made 433 

File original list made by board 434 

Manner of making 433-434 

Copy posted — penalty tearing down 434 

Revision of— second meeting 435 

Proceedings open— make corrections 435 

Revise register— add new names 435 

Cause copy of registry made, etc 436 

No vote received at state election unless 

on list 436 

Entry on by clerks of election 437 

When registry lists filed in town or city 

clerk's office 437 

Register open for inspection 437 

Compensation of members of board 438 

Fraudulent registration — punishment. . . . 438 
Blanks for prepared by secretary of state, 

etc 438 

Power to preserve order . 438 

Vacancies in how filled 438 

Violation of law— penalty 438 

Release. 

Damages opening may be released 160 

Form of release by owner of land 161 

To be filed with town clerk, when 169 

Form of, for right of way for drain 236 

Report. 
Commissioners make of decision of coun- 
ty into towns , 36 

Form of to divide counties into towns... 36 
Form of committee of board of supervi- 
sors 459 

Representatives. 

In congress, when elected 401 

In general assembly, when elected 402 

Who may contest election of. 426 

Vacancy in office of, how filled 431 

Residence. 

In pauper act defined 265 

To constitute voter 413 

Permanent abode necessary to constitute. 414 
Resignation. 

Of town officers justice to accept 91 

In case of, justices and constable— pro- 
ceedings 91 

Form of "by town officer 91 

Of town or district collector, when ac- 
cepted 335 

Ot elective officers, to whom made 430 

Return. 

Form of constables service of notice 166 

For election in members board of equali- 
zation 323 

Revenue. 

What property taxable 281-282-283 

Property exempt 283-284-285 

Personal, how valued 285-287 

Real estate, how valued 2h7 

Personal property, when listed 287 

Manner of and who shall list 288-289 

Where personal property listed 289 

Farm property, where listed 290 

Manufacturer's property, where 291 



Page. 
Revenue. Continued. 
Real estate exempt, when sold how taxa- 
ble 291 

Personal in transitu, how listed 291 

Nursery stock, how listed 291 

Personal of banks, bankers, brokers, etc. 291 

Steamboat companies, vessel s, etc 291 

Personal of gas and coke companies 291 

Of street railroad, plank, gravel road, etc. 291 

Of stage companies, etc 292 

Of express or transportation companies.. 292? 

Consignee list, his interest 292. 

Listing on behalf of others, where 292 

Bond and stock holders, list interest 292 

Money secured by deed 292 

Removal between first of May and July — 

how assessed 292 

Place of listing when fixed by county 

board 293- 

Persons required make schedule 293 

Duty of assessors to determine values 293 

Refusal to list— penalty 293 

Schedule, form of. 293-295 

Assessor may examine owner under oath 295 
Refusal to answer — assessor may list, etc. 295 

Falsely swearing— guilty of perjury 295 

Rules for listing credits 295-296 

When debts not deducted 296 

Deductions to be verified on oath 296 

Fraudulent statement— penalty 296' 

Rules for listing and valuing property of 

banks, brokers and stock jobbers 296 

Of pawn brokers 297 

Of corporations, capital stock and fran- 
chise 297-299 

Of banks, state and national 299-301 

Manner of listing and valuing railroad 

property 301-305 

Telegraph companies make schedule ... 305 

Board of equalization to assess, etc 306 

Tax on capital stock, how collected 306 

F* lse schedule— penalty 306 

Making false list, etc.— perjury ... 306 

Real property— where listed— who liable 

for tax 306 

Leasehold interest when listed 307 

Government land, when taxable 307 

Illinois Central lands, when taxable 307 

Swamp lands, when taxable 307 

When land to be surveyed and platted.. . 307 
Neglect to survey, county clerk to cause.. 308 

Land between counties, how listed 308 • 

Land between towns, how listed 309 

Appointment of assessors 311 

Oaths and duties of assessors 312 : 

Review of assessment by town board .... 315 

Return of assessor to county clerk 316 

Pay of assessor and deputy 103-318 

Duties of clerk on return of assessment 

books : 319' 

Equalization of assessment by county 

board 319 

Report of assessment by clerk to auditor 

for equalization , 321 

State board of equalization 322 

Rates of taxation 327-329 

For state purposes 328 

For county purposes 329 

Towns, cities, etc 329 

Collector's books— extending rates 330 

Books, how made— rates, how extended. 330 
Qualification of town and district col- 
lectors 332 

Delivery of collector's book — warrants. . . 333 
Collector in counties not under township 
organization 335- 



INDEX. 



523 



Page. 
Revenue. Continued. 
Vacancies and resignations in office of 

collectors 335 

County treasurer and sheriff" when ex 

officio collector of. 336 

What kind of money collected in 337 

Bond — oath— approval of bonds 336-337 

Manner in which taxes collected 339 

Distress for taxes 341 

Sworn statements to be made by collectors 344 
Return of town and district collector to 

county 345 

Return of delinquent special assessment. 347 

County collectors receipts— powers 348 

Advertisement for judgment and sale — 349 

Judgment— appeals— proceedings 354 

Sale of delinquent lands for taxes 357 

Certified copy of sale lists sent to auditor 361 

Redemption of lands from sale 361 

Tax deeds 364 

Forfeited property 368 

Final settlement of county collector 370 

Partial settlement of county collectors — 372 
Final settlement of county collector for 

state taxes 373 

Lien of taxes 375 

Bondsman of collector or treasurer— who 

not eligible 377 

Bond of collector held as security 377 

Suits against collectors 377 

Sale of real estate in behalf of state— re- 
demption 379 

Double payment of tax— refunding 380 

When assessment rolls destroyed 381 

Other duties of auditor 381 

Omitted property— saving clauses 383 

Who may administer oaths 385 

Penalties against officers 385 

County to furnish books and blanks 386 

County funds— manner of keeping 387 

Definitions in revenue act.*. 388 

Repealing clause 389 

Bridges on state border— how assessed .... 390 

Illinois Central road, how assessed 390 

Agricultural and other statistics 392 

Dogs— assessment of 393 

Right of Way. 

For roads— damages to be ascertained be- 
fore opened 160 

For private roads— damages, how paid. .. 176 

Drainage commissioners to procure 212 

Releases of to be in writing 212 

Form of agreement for right of way and 

release of damages 212 

How procured in counties, etc., not under 

organization 228 

In lands in two counties — or two towns. . 229 

By adjoining owners, etc. 236-238 

Form of deed of, adjoining owners releas- 
ing 236 

Roads. See Roads and Bridges. 

Roads and Bridges. 

Electors power to raise money for, etc 54 

Fines of supervisor and town clerk ap- 
plied to repair of 94 

Public highways defined 113 

Law of the road 114-119 

Travelers keep to the right 114-115-116 

Penalty for neglect by travelers 115 

Drunken driver— fine for keeping 116-117 

Duty of employer to discharge drunken 

driver 117 

Keeping drunken driver month after no- 
tice—penalty 117 



Page, 
Roads and Bridges. Continued. 
Form of notice to owner of carriage of 

intoxication of driver 117 

Running horses— penalty for 117 

Teams for conveying passengers to be 

hitched — penalty for neglect 117-118 

Owner of carriage liable for damages, etc. 118 

Driver violating act— penalty for 118 

Commissioners of highways have care 

and superintendence of 119 

Roads imperfectly described entered of 

record 121 

Cause same to be kept in repair 119-122 

Lay out and establish roads 120 

Form of order ascertaining road imper- 
fectly described or not recorded . 121 

Highway labor and road tax 129-144 

Tax for repair of roads— how raised 129 

Tax in city or village paid to treasurer.. . 129 

Labor on highway, how fixed 130 

Form of order of commissioners assessing 

highway labor and road tax 130 

Form of list of assessment of highway 

labor 130 

List of persons to work on highways, how 

made 131 

Form of alphabetical list of personal 

property tax payers 131 

Form of list of land road tax assessment. 131 
Form of notice of assessment of property 

tax 133 

Form of overseer's receipt for poll tax 

worked by contract 133 

Notice to perform labor to be given by 

overseers 135 

Road tax, when may be collected in 

money 142 

Width of roads laid out 150 

Roads to be opened within five years 151 

Altering, widening, vacating and estab- 
lishing roads 153-159 

When petitioned for may be altered, etc. . 153 
Form of petition for altering— widening 

—vacation of. 153 

Petition requisites of. 153 

Form of petition for new road 154 

Form of notice for time and place for ex- 
amination and hear reasons 156 

Form of notice of adjournment of road 

meeting 157 

Vacation of— order to be filed with town 

clerk 158 

Form of order vacating road . . 158' 

Proceedings in alteration, widening or 

establishing 158-159 

Damages— assessment 160-175 

Ascertained before road opended 160 

Damages may be agreed upon 160 

Form of agreement for damages laying 

out road 160 

Form of release of damages by owner of 

land 161 

Assessment of damages— jury 163 

Form of certificate and application for 

jury 163 

Notice to owners —selecting jury — chal- 
lenge 164 

Trial— verdict— judgment — form of ver- 
dict 167 

Proceedings may be revoked 169 

Order of commissioners altering, etc., 

road, when made 169 

Form of order when damage assessed. . . . 170- 
When damages agreed or released, order. 171 
Form of order when damages are released 
or agreed on 174 



524 



INDEX. 



Page. 
Roads and Bridges. Continued. 
Roads for private and public use. . 175-178 

Private, how laid out 175 

Form of petition for 176 

Limitation of, time to open 177 

Time given to remove crops and fences . . 178 

Payment for work on 178 

Town and county line roads 178-179 

How established 178 

Allotment to towns to repair— division of 

expense 179 

Form oi order establishing, etc., road on 

line 179 

Town and county line roads— how alloted 

and repaired 188-189 

State line roads — how laid out 189 

'Establishment of new road not vacate 

previous unless prayed for 194 

Bridges may be built and repaired by 

contract. 194 

' Private contract may be made to amount 

of $25 194 

Form of notice of public letting to build 

bridge ... 194 

Form of contract for building bridge 195 

'Eoad appeals — See appeals 180-189 

How taken from decision of commission- 
ers 180 

Notice to be given to commissioners 180 

Form of petition for appeal 181 

Form of notice to commissioners and pe- 

tioners 181 

Form affidavit of service of upon com- 
missioners 181 

Form affidavit of service on petitioners.. 182 

Trial— powers of supervisors 182 

Form of summons to three supervisors.. . 183 
Order of supervisors — compensation— de- 
cision final 183 

Form of order of supervisors fixing time 

and place to hear appeal 183 

Form of order on road appeal — from de- 
cision in favor of road 183 

Costs of paid by party appealing 184 

Form of order on road appeal— decision 

refusing road 184 

Party appealing to file bond 186 

Form of appeal bond appeal from decis- 

sion of commissioners 186 

,Form of appeal bond by persons inter- 
ested in verdict 187 

Majority may decide 187 

Appeal when road is on town or county 

line 187 

Petition for appeal in case of town line . . 188 
Form of petition for appeal in case of 
town line 187 

Road Districts. 

Commissioners to divide town into 123 

Form of order dividing town into 123 

Inhabitants to work, assigned by commis- 
sioners of highways 123 

Rolling Stock. 

Movable property of railroad 302 

Personal property for taxation 302 

Schedule of when to be returned... 303 

When listed and taxed.... 303 

Rules and Regulations. See By-Laws. 

Of town, clerk to publish, etc 63 

When to take effect 62 

Of town, clerk to record in record book. . 98 

Sale. See Judgment. 

Of land for taxes, by whom made 357 

Process for sale of land for taxes 357 

Certificate on which sale made 358 



Page. 
Sale. Continued. 

Form of certificate 358 

Payments after judgment to be noted on 

record 358 

County clerk to assist at sale 358 

When land sold clerk to enter on record. 358 
Land redeemed name of po,rty entered on 

record 358 

Record book furnished by county 359 

Lands forfeited at noted on record 359 

Manner of conducting sale 359 

Land how sold— payment 360 

What land forfeited to state 360 

Failure of collector to attend 360 

Failure of county clerk to attend 360 

Payment by purchaser 360 

Failure, land offered again 360 

Purchaser to receive certificate 360 

Certificate assignable 361 

County clerk make index to sale records. 361 
Certified copies of lists sent to auditor. . . 361 
Real property, how reedeemed from.. 361-362 

When purchaser suffer land sold 362 

Books and records of county clerk evi- 
dence of sale, etc 363 

Erroneous sale— correction made 363 

Money paid back to purchaser at 363 

Effect of redemption from 364 

Of real estate on execution for state 379 

Purchased for by state 379 

How redeemed on 379 

By wrong name not to yitiate 385 

Of bridge for taxes 390 

Schedule. 

Persons to make and to deliver to assessor 293 

Form of. 293 

Requisites of required of railroad 301 

When to be made 301 

Of rolling stock of railroad — requisites... 302 

When to be returned 303 

Of railroad to auditor — requisites of 303 

Made to instructions of auditor 304 

Neglect to return to county clerk 304 

Neglect to return to auditor 304 

Penalty for neglect to return ... 304 

Of telegraph company — requsites of. 305 

Making false — penalty 306 

Making false under oath perjury 306 

Agricultural and other, how prepared, etc 392 

Secretary of State Board of Agricul- 
ture. 

How appointed— duties of 324 

Furnish fuel, light, rooms, etc., for board. 327 
Compensation of 327 

Secretary of State. 

When elected 401 

Deliver election contest notice 428 

Prepare registry blanks, 438 

Senators. 

When elected 402 

Vacancy in office, how filled 431 

Service. 
Of process on town, how made 64 

Settlement. 

Supervisor to make annual 96 

Justices and town clerk to certify to 96 

Final of county collector 370-372 

Partial of county collector 372 

Final settlement of for state taxes 373-375 

Sheriff. 

Post notices of first town election 37 

Ex officio collector of taxes 335 

When elected 402 



INDEX. 



525 



Page. 

Side-walk. 

Penalty for injuring, etc 14b 

Lawful tor owner to build 14b 

Width of 148 

Special Assessment. 
Return of delinquent, how and by whom 

made f-fZ 

When transferred to tax books 34/ 

When to be returned— when barred 384 

Special Town Meetings. 

When held— request for— notice of 69 

Form of notice of 69 

Form of statement or request for 69 

Notice to set forth object of 70 

Business at restricted to subjects stated in 

request • ™ 

Powers of electors at 70-71 

To fill vacancies ^° 

Raise monev to repair highways, etc — . a 
Act on subjects postponed at annual 

meeting •■;•:••• ',"*" 71 

To borrow money to build bridge, how 
called 192 

State's Attorney. 
To make complaint in case of pauper, etc 262 
When elected— term 403 

State Board of Agriculture. 

Statistics for, how prepared 392 

Duties and powers of secretary of 392 

State Board of Equalization. See Board 
of Equalization. 

Statement. 
Form of by supervisors of affairs of town 94 

Form of by drainage commissioners 209 

Of secretary of insurance co. to make an- 
nual 279 

Statistics. 
Agricultural and other collected by asses- 

lor 392 

County clerk to provide blanks for 392 

Secretary of board of agriculture to pre- 
pare 392 

County clerk to revise and correct returns 393 

Subpoena. 

Fence viewers power to issue 251 

Form of, for witness 251 

Substitute. 

Person assessed to work on highways may 
employ 136 

Penalty, failing to work eight hours in 
each day 136 

Fine imposed on person assessed 136 

Sue. 

Town's power to and be sued 51 

Supervisor sue tor penalties to town 95 

Canada thistle commissioner power to sue 

for penalties Ill 

Highway commissioners sue for penalties 

142-148 
Drainage districts may and be sued.. 206-232 

Counties power to and be sued 446 

County board to sue and defend suits. ... 454 
Suits. See Sue. 
Electors raise money to prosecute and de- 
fend 54 

Electors of town power provide for insti- 
tution and defense of 55 

By or against town, how conducted 64 

Service on town, how made 64 

By town, in what name brought 64 

Supervisors to commence for penalties to 
town, etc 95 



Page.. 
Suits. Continued. 
For penalties under road law, how and 

by whom commenced 148 

Against member of insurance co 279 

By member of insurance company 279" 

On collector's bond, when brought 346 

County board may institute for taxes on 

forfeited property 369 

Auditor to commence on failure of col- 
lector to settle, etc 377 

Where same may be brought 377 

Jurisdiction of court 377 

Proceedings in suit by others 378 

By cities, towns, etc., on bond of collector 378 
By drainage districts 206-232 

Summons. 
How served on town 64 

Justice to issue on complaint of overseer. 137 

Form of for refusing to work 137 

Form of to have damages assessed 152 

Form of to supervisors to hear appeal 183 

Form of to supervisors to hear appeals in 

drains 219' 

Requisites in case failure to support pau- 
per relative 262 

Form of justice for appraisers of sheep... 297 
Issued on election contest 428- 

Supervisor. See Board of Supervisors- 
County Board. 
Duties on disposition of property on di- 
vision of towns 44 

On annexation of towns 45 

In division of personal property when 

town divided 46 

When to meet for purpose 46 

Meeting, how called— notice to be given. 46 

When to give notice of town meeting. . . . 66 

One of judges of election 68 

Elected at annual town meeting 71 

To be ex officio overseer of poo- 71 

When additional supervisors elected 71 

Term of office 71 

Subscribe oath when elected 85- 

Refusing when elected to serve— penalty. 87 

His duties 92-97 

Shall give bond ,... 92 

Suit on bond— by whom brought 92 

Receive and pay out money for town 93- 

File with town clerk statement of affairs 

of town 93 

Form of statement of affairs of towns 94 

Neglect to make statement — penalty 95 

Prosecute for penalties, given to town,.. . 95 
Keep account of receipts and expendi- 
tures in book 95 

To deliver book to successor 96 

Make annual settlement to board of audi- 
tors 96 

Justice and town clerk to certify to 96 

Form of supervisor's book 96 

Atten d meeting of county board 96 

Lay accounts presented before town audi- 
tors 96 

Failure to perform duties— penalty 97 

Assistant supervisor no power as town 

officer. 97 

Powers and duties of in Cook county ... 97 

Compensation of in Cook county 97 

One of board of town auditors 99 

Board of town auditors to examine ac- 
counts of 100 

Fees allowed to 105 

Lay delinquent list before board of 142 

Summoned to hear road appeal I83 



526 



INDEX. 



Page, 
Supervisor. Continued. 
Powers in road appeal — call jury to assess 

damages 183 

form of order by, fixing time and place of 

hearing 183 

Form of order on road appeal— decision 

in favor of road 183 

Make report of proceedings and decision 183 

Decision to be final in 183 

Majority to decide 187 

Order town clerk to call special meeting. 192 
With town clerk to issue bonds to build 

bridge 192 

Hear drainage appeals 219 

File decision with clerk 220 

Form of order confirming decision 220 

Keep dog license fund — bond by 394 

Superintendent of Public Instruc- 
tion. 

When elected 401 

Superintendent of Schools. 

Of county, when elected 403 

Sureties. 

On collectors bond, when discharged 338 

May attach property of 338 

Death of collector, when not to discharge 335 
Who not eligible as, on collector's bond... 377 
Surveyor. 

Make plat of road 158 

Report survey and plat to 159 

Form of report of survey of road 159 

Form of report of survey of alteration of 

road 159 

Employed by drainage commissioners- 
duties of 210 

Form of report of survey and estimate 

for drains 210 

Tax. See Revenue. 

Electors at town meeting may raise 53 

Division or alteration of town not affect 

assessment or collection 44 

Raised for bridges, etc., to whom paid. . . 54 

How raised for town charges 102 

For making and repairing roads, by whom 

ascertained 127 

Of town lying in city to be paid to treas- 
urer of 129 

When expended beyond limits to be by 

consent of road commissioners 130 

Road tax, how assessed 128-144 

Form of notice of assessment of property 

tax 133 

Notice to person for land or personal 

property 139 

Levy of delinquent when and how made 142 
Road, when maybe collected in money.. 142 
Commissioners to annually ascertain for, 

etc 199 

Form of levy for highway purposes 199 

Form of statement of tax levy 200 

How extended and collected 201 

Form of notice for voting at town meet- 
ing 201 

County clerk to certify aggregate, to whom 201 
How and by whom extended on tax books 201 
List of tax payers furnished to clerk of 

county court 202 

Form of list of tax payers by commission- 
ers 202 

On railroad property, how and by whom 

extended and collected 305 

Rates of entered by county clerk on books 310 

Lien of taxes 375 

Double payment, refunded 380 



_ Page. 

Tax. Continued. 

Double assessment— refunding 380 

Uncollected added to subsequent year . . 383 
County board levy for county 450 

Tax Deed. 

Purchaser of land when entitled to 364 

Serve notice on occupant, etc 364 

Afiidavit of compliance with law 365 

Swearing falsely, guilty of perjury 365 

Who entitled to 366 

May include several tracts 366 

Fee for making 366 

To be recorded 366 

Form of 367 

Evidence on which issued, recorded 367 

Effect of, as evidence 367 

When to be taken out 368 

Auditor to take for property bought for 
state 379 

Tax Sale. See Sale. 

Telegraph Companies. 
Return to auditor schedule— requisites of 305 
Personal property of, how assessed, etc. . . 306 

Term of Office. See Elections— Office. 

Of town officers, one year 71 

Of state officers 401 

Form of determination of commissioners 
by lot 39 

Towns. 

Division of, when made— how and by 
whom 35 

Conform to government survey 35 

Fractional, how disposed of '. 35 

When too few inhabitants to be added or 

* divided 36 

When divided by creek or river, how dis- 
posed of 36 

Naming of 36-460 

County board power to change name . . 36-460 

No two named alike 36 

Report of bounds and name to county 

clerk 36 

Abstract of report of bounds and name 

transmitted to auditor 37 

When names alike— proceedings 37 

Records of names and boundaries kept 

by auditor 37 

Retusal of to organize or elect officers — 

proceedings 39 

Continued refusal of— county board to ap- 
point officers 39 

When annexed to another town 39 

When city to constitute a town 39 

Alterations of boundaries, division of 

town property 41-49 

Form of petition for 42 

County board may alter boundaries of 

and create new towns 41-460 

Size of new town created 42 

Form of petition for new 42 

Requisites of petition for— notice of, etc.. 42 
Incorporated town how and when di- 
vided 42 

Form of petition dividing town 42 

Form of notice for creating new town or 

changing boundaries 42 

When divided— election to be held 43 

When parts of several taken, no election 

necessary in town from which taken. . . 43 
Officers residing in new town, office va- 
cant 43 

Terms of officers in new town 43 

Division or alteration not affect assess- 
ment or collection of taxes 4j 



INDEX. 



527 



Page. 
'Towns. Continued, 

Disposition of real estate on division of. . 44 
Form of agreement in case of disposition 

of property 44 

-Disposition of property on annexation. . . 44 

Form of deed of conveyance by 45 

Town divided 45 

Divided or altered, apportionment of per- 
sonal estate 46 

Cemetery situated in, after division be- 
longs to such 47 

Debts of how apportioned 47 

Disputes in division of debts or property 

to whom submitted 47 

•Contiguous, bv whom and how united. 47^8 
Petition for uniting contiguous— requi- 
sites 48 

Union not complete until expiration of 

term of officers to serve 49 

Corporate powers of towns— town meet- 
ings—by-laws—rules and regulations. 49-63 

Corporate name, style of. 49 

Actions against to De against it as such. . . 50 

Corporate powers of enumerated 51-52 

Powers of electors of, at annual town 

meeting 53-63 

Legal proceedings in favor of and against 

64-66 
.How conducted— service on town, on 

whom 64 

In what name suits Droughts— exception. 64 
Who competent as witness and jurors. . . 65 

May prosecute action before justices 65 

Partition of town lands 65 

Annual meeting, when held 66 

Notice of annual meeting, by whom given 66 

Each town an election precinct 67 

Change ol place town meeting, how made 68 
Form of request to change place of meet- 
ing 68 

For of notice of request 68 

Special meeting in, when called— request 69 
Powers of electors at special meeting.. 70-71 

Vacancies in office, how filled 70 

Election of officers of, when held 71 

Of trustees of schools, when held 71 

Election of commissioners of highways 

in, when held 73 

-Organizing town meeting — moderator — 

duties, etc 73 

Duties of town clerk at town meeting — 73 
When lies in incorporated city, common 

council fix election precinct 75 

Common council fix voting places, ap- 
point judges 75 

Ballots at election deposited in separate 

box 75 

When town lies in incorproated city time 

of holding town meeting 75 

General election laws apply to election 

held in. 75 

No registration required at elections in. . . 75 
Form of poll list kept at town meeting. . 76 

Funds of managed by supervisor 93 

Penalties, supervisor to prosecute for 95 

Commissioners of highways to have care 

of roads and bridges in 118-119 

Divided by into road districts 123 

Legal voters may vote to collect road tax 

in money 142 

When to pay damages in establishing.pri- 

vate road 176 

Roads on lines of, how established 178-179 

When to bear expense of town line 

bridges — 189 

"When to support poor in 264 



Page. 
Town Accounts. See Accounts. 
Town Auditor. See Board of Town Au- 

tors. 
Town Charges. 

Judgment against town or officers 66 

What deemed, enumerated 101 

Money to defray, how raised 102 

Judgment against highway commission- 
ers on contracts 191 

Town Clerk. 
Cause by-laws and regulations to be pub- 
lished 63 

Give notice of annual town meeting 66 

Request filed with to change place of town 

meeting 68 

When special meeting called request filed 

with 69 

Give notice of special town meeting 69 

Elected at town meeting 71 

Term of office 71 

Keep minutes of town meeting 74 

When absent, other person chosen to act. 74 
Post notices where election held in town. 75 
Clerk of town meeting in town in incor- 
porated city 76 

Keep record of proceedings at 76 

Read result of election at town meeting.. 77 

Give notice when tie vote to parties 78 

Transmit to person elected notice of. 78 

File list of town officers with county clerk 79 
Act as clerk of meeting for transaction of 

business 80 

Keep record— enter rules, etc., made by 

meeting 81 

Subscribe oath when elected 85 

Refusal to serve when elected, forfeit $25. 87 
Form of notice by to one appointed to 

office 90 

Give notice of resignation of justice or 

constable to county clerk 91 

Make minute of resignation of town offi- 
cer on records 91 

When supervisor's bond forfeited, bring 

suit on 92 

Duty to approve bond of. 92 

Record supervisor's statement in record 

book 94 

Post copy of supervisor's statement 94 

Penalty for neglect to post statement 94 

General duties of 97-98 

Have custody of records, etc., of town... 97 

Administer oaths to town officers 97 

Form of filing papers. 97 

Keep record of town meeting, .etc 98 

Deliver to supervisor certified copies of 

votes for raising money 98 

Form of certificate to copy of papers 98 

Form of certificate to entry of votes 98 

Certify to county clerk amount of town 

taxes required 98 

Failure to return tax — penalty 98 

Copies of papers filed same effect as orig- 
inals 98 

One of board of town auditors 99 

Keep on file for inspection accounts au- 
dited 100 

Read accounts at annual town meeting. . 100 
Keep on file certificate of auditors to 

claims 101 

Certify accounts audited to county clerk. 101 

Act as clerk of town auditors 102 

Keep proceedings of town auditors in 

book 102 

Keep record of board of health 103 

Report board of health proceedings to 
meeting 108 



528 



INDEX. 



Page. 
Town Clerk. Continued. 
Fees allowed to 105 

Record estray notice in book 108 

Record order dividing town into road dis- 
tricts 123 

Deliver lists filed by overseers to commis- 
sioners of highways 128 

Give notice of road tax assessed , 132 

Give notice to person appointed overseer. 135 

Certify plat of road districts 144 

Record of papers relating to roads evi- 
dence 175 

Clerk of drainage commissioners 206 

Have custody of drainage records 206 

Record proceedings of drainage commis- 
sioners 206 

File petition for drainage district 207 

Give notice to commissioners of such 

filin g 207 

Give notice of meeting of drainage com- 
missioners 207 

Give notice of adjourned meeting of— 

form 210 

Summon supervisors to hear drainage ap- 
peal 219 

Form of summons to supervisors 219 

Lay assessment roll before supervisors ... 219 
Make and certify assessment roll to treas- 
urer of drainage district 222 

Notify county clerk of non-resident pau- 
pers coming in town, etc 265 

Form of notice to remove non-resident 
pauper. 265 

Township Insurance Companies. 

Who may form company 275 

How formed— declaration— requisites of 

declaration 275 

Charter— certified copy evidence, etc 276 

Form of dedication to form company 276 

Form of charter for 276 

Number of directors 276 

Directors how elected— term of office — 277 

Subsequent elections, when held 277 

Persons insured, votes entitled to 277 

President, treasurer and secretary, how 

elected 277 

Secretary and treasurer give bond 277 

Corporate powers of 277 

Who may become members 277 

Manner of insuring 277 

Risks, how classified 278 

Not insure beyond limits of distriert 278 

Loss— notify president 278 

When president and secretary may adjust 

loss 278 

When committee to ascertain loss 278 

Failure to agree, claimant may appeal. . . 278 
County court appoint committee of refer- 
ence 278 

Pay of committee 278 

Assessment, when and how made — 278-279 
Notice ol assessment to be given.... . .... 279 

Suit brought, neglect to pay 279 

Suits may be brought for losses 279 

Secretary to prepare annual statement.. . 279 
Member may withdraw from company.... 279 
Power to cancel policy by giving insured 

notice 279 

President and secretary to report to audi- 
tor 279 

Certificate of auditor— company pay for. . 280 

At organization to pay auditor |l0 280 

How company may be dissolved 280 

Companies formed under act 1872 may or- 
ganize under...... 280 



Page, 
Town Meeting. 

Electors at— powers of 53-'*3 

Notice of, how and by whom given 66 

Annual, when held 66- 

Notice by whom and how given 66- 

Form of notice of 66-67 

What constitutes an election precinct for. 67 

Place of holding fixed by electors 68- 

Change of place— how made— proceed- 
ings 68 

Form of request for change 68 

Form of notice of request 68 

Special town meeting— how and when 

called 69> 

Notice oi by whom given 69 

Notice of special— business restricted to 

statement 70- 

Form of resolution postponing subject 

for special meeting 70> 

Powers of electors at special meeting.. .70-71 

May fill vacancies at special meeting 70' 

Raise money for repairing highways, etc. 71 
To act on subjects postponed from annuai 

meeting 71 

Organization of— electors choose moder- 
ator.... 7$ 

Time of calling to order 73. 

Town clerk to be clerk of— keep minutes, 

etc 74 

When absent clerk chosen by electors 74 

Town supply ballot boxes 74 

When additional ballot boxes used 74 

When assistant moderator chosen 74 

Take oath — subject to same penalties as 

moderator 74 

Under the direction of moderator 74 

Place for transaction of business, when 

more than one polling place 75= 

Town in incorporated city, time of hold- 
ing. 75 

Common council designate place 76- 

Town clerk act as clerk of meeting 7& 

Form of poll list, kept at 76 

Mode of conducting for miscellaneous 

business 79-84 

Moderator call to order for miscellaneous 

business 79 

Town clerk to act as clerk of 80 

Form of minutes of proceedings of. 81 

Where no clerk present, meeting choose 

one pro tern ■. 82 

Clerk pro tern take oath like moderator. . . 82 

Moderator to preside at, etc 82* 

Moderator declare result of votes 82-83 

Business concluded moderator declare. . .. 83 

When question may be reconsidered 83 

Disorderly conduct at — penalty for — how 

recovered 83- 

Township Organization. 

Origin and progress 19-32 

Act concerning 33-106 

How adopted 33-3S 

When township government commences. 35 
Towns, how named— change of name — 36 

No two towns to have same name 36-37 

Records of names kept by auditor 37 

Refusal or neglect of town to organize or 

elect officers— second election 38 

Continued refusal— board to appoint offi- 
cers of town 39> 

Terms of such officers 39* 

Failure to qualify — proceedings 39 

When part of county not organized 39- 

How discontinued 40-41 

Petition— election — result 40- 



INDEX. 



529 



Page. 
Township Organization. Continued. 

Disposition of records, business, property 41 
'■ Alteration of boundaries and divisions of 

towns 41-49 

Corporate powers of towns 49-63 

Legal proceedings in favor of and against 

town 64-66 

Town meeting, annual and special 66-71 

Election of town officers 71-79 

Mode of conducting elections for town 

officers 71-79 

Mode of conducting town meetings— mis- 
cellaneous business. 79-84 

Qualification and tenure of office 84-88 

Vacancies in town office— manner of fill- 
ing 88-91 

Supervisor and his duties 92-97 

Town clerk and his duties 97-99 

Board of town auditors 99-102 

Board of health 103-104 

Compensation of town officers 104-106 

Track. 

Fencing of by railroad 253 

Of railroad, by whom assessed for taxa- 
tion . 325 

Treasurer. 

Of state, when elected— term 

Of county to be treasurer of drainage 
board 

Compensation for collection of delin- 
quent drain assessments 

Of county ex officio collector of — 

Of county, when elected 

Of drainage commissioners execute bond. 

Form of bond by 

Bond approved by commissioners 

Keep books and accounts, etc 

Preserve on file orders paid 

Turn over books to successors 

Pay out money on order only 222- 

Form of order 

Make certified list of delinquent lands,etc. 

Return ] ist to county collector 

Form of delinquent list 

May receive delinquent tax 

How appointed in special districts.. 

Give bond— term of office— powers 

Who to be in various cases 

In all cases to give bond 

Compensation of. 

Of highway commissioners, when and 
how chosen 

Duties of— give bond 

Form of bond of. 

Of commissioners of highways to pay 
road tax according to abstracts furnish- 
ed by collector 

Trees. 

Electors at town meeting offer premiums 
for cultivation, etc 

Owner of land may plant on road 



141 



Trustees of Schools. 

Elected same time as town officers 72 

Vacancy— election of, how ordered 73 

Vacancies. 

Filled at special town meeting 70 

In town office, how filled 88-91 

In board of appointment — how filled — 

exception. 89 

Form of notice given to one appointed to 

fill 90 

In town office in city filled by city coun- 
cil 107 

In state board of equalization— how filled 323 



Page. 
Vacancies. Continued. 
In town or district collector, how filled . 335 
When same vacant, powers of county col- 
lector 348 

In presidential elector— how filled 400 

When elective office becomes vacant 430 

Who may determine 430 

In office of governor and lieutenant gov- 
ernor 431 

In other state offices, how filled 431 

In senator or representative 431 

In representative in congress 431 

In office of judges, etc 431 

In clerks of courts 432 

In county officers 432 

In board of registry, how filled 438 

Vacation. 

Of road— form of order.. .... 158 

Of street, alley, highwav, lane, effect of 

203-204 
Venire. 
To issue in proceedings to open ditches 

across lands 152 

To issue in assessing road damages, etc. . . 164 
Form of for jury to assess road damages. 164 
Change of in assessment of damages 

granted 166 

Justice to issue in drainage case 213 

Form of for jury in drainage law 214 

Verdict. 

Form of jury assessing road damages 167 

Form of jury assessing damages for drains 215 

Vote. 

Majority defined 35 

Canvass of on discontinuance of township 

organization 40 

On change of meeting place— procedings 68 
Canvass of when several in ballot boxes. 75 
Supervisor, assessor and collector to can- 
vass and declare result, when 75 

In case of tie question to be determined 

by lot 78 

Form of notice of drawing .lots in case of 

tie vote 78 

Form of memorandum of decision by 

clerk 78 

Result of, when to be declared by moder- 
ator at meeting 82 

For reconsideration of business, vote re- 
quired to 124 

Each member of board of town auditors 

to cast but one vote 99 

When purchase tools, implements submit- 
ted to 124 

To oorrow money to build br; dge to be by 

ballot 192 

For electors, etc.. by whom canvassed.. .. 400 

When tie vote, how decided 400 

At general election by ballot 409 

Canvass of— proceedings 411 

Affidavit of qualification to 415 

Convicts disqualified to 415 

When and by whom canvassed 416 

Tie vote— drawing lots 418 

Illegal— penalty 420 

Disclosing— penalty for 423 

Tie vote on hearing of contest — decided 

by lot 429 

On transfer of territory to county, effect of 440 

On election held, by whom canvassed 443 

On election held, for additional tax 452 

On election held, for issuing bonds. ...... 453 

On election held, for county bonds 456 



m 



INDEX. 



Page. 
Voters. 

Qualified can vote to adopt township or- 
ganization 33 

One-fifth legal voters can petition to dis- 
continue township organization 40 

One-fourth necessary on petition to unite 

contiguous towns 48 

Votes at, how canvassed 48 

General election laws to apply to voters 

under township act as far as applicable 76 
No registration required at town election 75 
Questions decided by a majority voting 

at meeting for business 82 

When result questioned— division of to 

be made 82 

Qualification to vote at town election ... 83 
May vote road tax collected in money, 

when 142 

Cpon petition of twenty continuance of 

support of poor, etc., submitted 271 

Pauper not deemed voter where poor 

house situated 273 

Qualifications of 413 

Affidavit or form of 415 

May petition animals run at large 470 

Warrant. 

County clerk add to collector's book — 332 
What collector's warrant shall direct — 332 



Page. 

Warrants. Continued. 

To b' annexed to collector's book 334 

Authorize collector to levy and distrain. 334 

Direct how to pay over tax b34 

Attached to lists* furnished deputy col- 
lectors 339 

Warrant of Appointment. 

Form of appointment to town offiee ... 89 
Filed in office of town clerk 90 

"Watering Places. 

Electors power to authorize and regulate. 58 
Commissioners oi highways power to 
construct.. 124 

Wells. 

Electors power to authorize and regulate. 58 
Commissioners of highways power to dig 124 

Witnessess. 

In h abitants of town competent 65 

Affidavit of for voter 415 

Oath by who administered 415 

Wolf Scalps. 

Bounty on allowed 464 

Bounty entered of record 464 

Scalps to be produced 464 

Oath of party claiming 465 

Record to be kept of certificates issued for 465 



<L 



